DEFIANCE Act of 2024

Bill: 118-s-3696
Sponsor: full_name: Sen. Durbin, Richard J. [D-IL]
Introduced: 2024-01-30
Policy area: Crime and Law Enforcement
Subjects: Advanced technology and technological innovations

Assault and harassment offenses

Civil actions and liability

Computer security and identity theft

Computers and information technology

Digital media

Fraud offenses and financial crimes

Photography and imaging

Pornography

Right of privacy

Sex offenses
Latest action: action_date: 2024-07-24
text: Held at the desk.

Summaries:
action_date: 2024-07-23
action_desc: Passed Senate
text: <p><strong>Disrupt Explicit Forged Images and Non-Consensual Edits Act of 2024 or the DEFIANCE Act of 2024</strong></p><p>This bill establishes a civil cause of action for individuals who are the subject of nonconsensual digital forgeries (commonly known as deepfakes) depicting intimate activity or nudity.</p><p>Under the bill, <em>digital forgery</em> is any intimate visual depiction of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means that is indistinguishable from an authentic visual depiction of the individual.</p><p>Specifically, an identifiable individual who is the subject of a digital forgery may bring a civil action against any person who knowingly produces, distributes, solicits, or possesses with the intent to distribute a digital forgery without the individual's consent.</p><p>Current law provides civil remedies, including damages and injunctive relief,&nbsp;for the nonconsensual disclosure of intimate images. This bill makes all relief available for the new cause of action for nonconsensual digital forgeries&nbsp;and expands the relief available for both causes of action. For example, an identifiable individual may recover profits of the defendant that are attributable to the conduct at issue in&nbsp;the claim as part of&nbsp;actual damages.</p><p>The bill also establishes a 10-year statute of limitations, but tolls the running of the statute of limitations until the individual learns about the violation or the individual turns 18, whichever occurs later. This applies to both current law related to nonconsensual disclosure of intimate images and the new cause of action for nonconsensual digital forgeries.</p>

tv_txt: 118th CONGRESS 2d Session S. 3696 IN THE SENATE OF THE UNITED STATES AN ACT To improve rights to relief for individuals affected by non-consensual activities involving intimate digital forgeries, and for other purposes.

1. Short title This Act may be cited as the Disrupt Explicit Forged Images and Non-Consensual Edits Act of 2024 or the DEFIANCE Act of 2024 . 2. Findings Congress finds that: (1) Digital forgeries, often called deepfakes, are synthetic images and videos that look realistic. The technology to create digital forgeries is now ubiquitous and easy to use. Hundreds of apps are available that can quickly generate digital forgeries without the need for any technical expertise. (2) Digital forgeries can be wholly fictitious but can also manipulate images of real people to depict sexually intimate conduct that did not occur. For example, some digital forgeries will paste the face of an individual onto the body of a real or fictitious individual who is nude or who is engaging in sexual activity. Another example is a photograph of an individual that is manipulated to digitally remove the clothing of the individual so that the person appears to be nude. (3) The individuals depicted in such digital forgeries are profoundly harmed when the content is produced, disclosed, or obtained without the consent of those individuals. These harms are not mitigated through labels or other information that indicates that the depiction is fake. (4) It can be destabilizing to victims whenever those victims are depicted in sexual digital forgeries against their will, as the privacy of those victims is violated and the victims lose control over their likeness and identity. (5) Victims can feel helpless because the victims— (A) may not be able to determine who has created the content; and (B) do not know how to prevent further disclosure of the digital forgery or how to prevent more forgeries from being made. (6) Victims may be fearful of being in public out of concern that individuals the victims encounter have seen the digital forgeries. This leads to social rupture through the loss of the ability to trust, stigmatization, and isolation. (7) Victims of non-consensual, sexually intimate digital forgeries may experience depression, anxiety, and suicidal ideation. These victims may also experience the silencing effect in which the victims withdraw from online spaces and public discourse to avoid further abuse. (8) Digital forgeries are often used to— (A) harass victims, interfering with their employment, education, reputation, or sense of safety; or (B) commit extortion, sexual assault, domestic violence, and other crimes. (9) Because of the harms caused by non-consensual, sexually intimate digital forgeries, such digital forgeries are considered to be a form of image-based sexual abuse. 3. Civil action relating to disclosure of intimate images (a) Definitions Section 1309 of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851 ) is amended— (1) in the heading, by inserting or nonconsensual activity involving digital forgeries after intimate images ; and (2) in subsection (a)— (A) in paragraph (2), by inserting competent, after conscious, ; (B) by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively; (C) by redesignating paragraph (3) as paragraph (5); (D) by inserting after paragraph (2) the following: (3) Digital forgery (A) In general The term digital forgery means any intimate visual depiction of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual. (B) Labels, disclosure, and context Any visual depiction described in subparagraph (A) constitutes a digital forgery for purposes of this paragraph regardless of whether a label, information disclosed with the visual depiction, or the context or setting in which the visual depiction is disclosed states or implies that the visual depiction is not authentic. ; (E) in paragraph (5), as so redesignated— (i) by striking (5) Depicted and inserting (5) Identifiable ; and (ii) by striking depicted individual and inserting identifiable individual ; and (F) in paragraph (6)(A), as so redesignated— (i) in clause (i), by striking ; or and inserting a semicolon; (ii) in clause (ii)— (I) in subclause (I), by striking individual; and inserting individual; or ; and (II) by striking subclause (III); and (iii) by adding at the end the following: (iii) an identifiable individual engaging in sexually explicit conduct; and . (b) Civil action Section 1309(b) of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851(b) ) is amended— (1) in paragraph (1)— (A) by striking paragraph (A) and inserting the following: (A) In general Except as provided in paragraph (5)— (i) an identifiable individual whose intimate visual depiction is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the consent of the identifiable individual, where such disclosure was made by a person who knows or recklessly disregards that the identifiable individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for relief as set forth in paragraph (3); (ii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced or possessed the digital forgery with intent to disclose it, or knowingly disclosed or solicited the digital forgery, if— (I) the identifiable individual did not consent to such production or possession with intent to disclose, disclosure, or solicitation; (II) the person knew or recklessly disregarded that the identifiable individual did not consent to such production or possession with intent to disclose, disclosure, or solicitation; and (III) such production, disclosure, solicitation, or possession is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce; and (iii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced the digital forgery if— (I) the identifiable individual did not consent to such production; (II) the person knew or recklessly disregarded that the identifiable individual— (aa) did not consent to such production; and (bb) was harmed, or was reasonably likely to be harmed, by the production; and (III) such production is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce. ; and (B) in subparagraph (B)— (i) in the heading, by inserting identifiable before individuals ; and (ii) by striking an individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the individual and inserting an identifiable individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the identifiable individual ; (2) in paragraph (2)— (A) in subparagraph (A)— (i) by inserting identifiable before individual ; (ii) by striking depiction and inserting intimate visual depiction or digital forgery ; and (iii) by striking distribution and inserting disclosure, solicitation, or possession ; and (B) in subparagraph (B)— (i) by inserting identifiable before individual; (ii) by inserting or digital forgery after each place the term depiction appears; and (iii) by inserting , solicitation, or possession after disclosure ; (3) by redesignating paragraph (4) as paragraph (5); (4) by striking paragraph (3) and inserting the following: (3) Relief (A) In general In a civil action filed under this section, an identifiable individual may recover— (i) damages as provided under subparagraph (C); and (ii) the cost of the action, including reasonable attorney fees and other litigation costs reasonably incurred. (B) Punitive damages and other relief The court may, in addition to any other relief available at law, award punitive damages or order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to delete, destroy, or cease display or disclosure of the intimate visual depiction or digital forgery. (C) Damages For purposes of subparagraph (A)(i), the identifiable individual may recover— (i) liquidated damages in the amount of— (I) $150,000; or (II) $250,000 if the conduct at issue in the claim was— (aa) committed in relation to actual or attempted sexual assault, stalking, or harassment of the identifiable individual by the defendant; or (bb) the direct and proximate cause of actual or attempted sexual assault, stalking, or harassment of the identifiable individual by any person; or (ii) actual damages sustained by the individual, which shall include any profits of the defendant that are attributable to the conduct at issue in the claim that are not otherwise taken into account in computing the actual damages. (D) Calculation of defendant’s profit For purposes of subparagraph (C)(ii), to establish the defendant’s profits, the identifiable individual shall be required to present proof only of the gross revenue of the defendant, and the defendant shall be required to prove the deductible expenses of the defendant and the elements of profit attributable to factors other than the conduct at issue in the claim. (4) Preservation of privacy In a civil action filed under this section, the court may issue an order to protect the privacy of a plaintiff, including by— (A) permitting the plaintiff to use a pseudonym; (B) requiring the parties to redact the personal identifying information of the plaintiff from any public filing, or to file such documents under seal; and (C) issuing a protective order for purposes of discovery, which may include an order indicating that any intimate visual depiction or digital forgery shall remain in the care, custody, and control of the court. ; (5) in paragraph (5)(A), as so redesignated— (A) by striking image and inserting visual depiction or digital forgery ; and (B) by striking depicted and inserting identifiable ; and (6) by adding at the end the following: (6) Statute of limitations Any action commenced under this section shall be barred unless the complaint is filed not later than 10 years from the later of— (A) the date on which the identifiable individual reasonably discovers the violation that forms the basis for the claim; or (B) the date on which the identifiable individual reaches 18 years of age. (7) Duplicative recovery barred No relief may be ordered under paragraph (3) against a person who is subject to a judgment under section 2255 of title 18, United States Code, for the same conduct involving the same identifiable individual and the same intimate visual depiction or digital forgery. . (c) Continued applicability of Federal, State, and Tribal law (1) In general This Act shall not be construed to impair, supersede, or limit a provision of Federal, State, or Tribal law. (2) No preemption Nothing in this Act shall prohibit a State or Tribal government from adopting and enforcing a provision of law governing disclosure of intimate images or nonconsensual activity involving a digital forgery, as defined in section 1309(a) of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851(a) ), as amended by this Act, that is at least as protective of the rights of a victim as this Act. 4. Severability If any provision of this Act, an amendment made by this Act, or the application of such a provision or amendment to any person or circumstance, is held to be unconstitutional, the remaining provisions of and amendments made by this Act, and the application of the provision or amendment held to be unconstitutional to any other person or circumstance, shall not be affected thereby.

Passed the Senate July 23, 2024. Secretary

tv_txt: II 118th CONGRESS 2d Session S. 3696 IN THE SENATE OF THE UNITED STATES January 30, 2024 Mr. Durbin (for himself, Mr. Graham , Mr. Hawley , and Ms. Klobuchar ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To improve rights to relief for individuals affected by non-consensual activities involving intimate digital forgeries, and for other purposes.

1. Short title This Act may be cited as the Disrupt Explicit Forged Images And Non-Consensual Edits Act of 2024 or the DEFIANCE Act of 2024 . 2. Civil action relating to disclosure of intimate images (a) Definitions Section 1309(a) of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851(a) ) is amended— (1) in paragraph (2), by inserting competent, after conscious, ; (2) by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively; (3) by redesignating paragraph (3) as paragraph (5); (4) by inserting after paragraph (2) the following: (3) Digital forgery The term digital forgery means any intimate visual depiction of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, to appear to a reasonable person to be indistinguishable from an authentic visual depiction of the individual, regardless of whether the visual depiction indicates, through a label or some other form of information published with the visual depiction, that the visual depiction is not authentic. ; (5) in paragraph (5), as so redesignated— (A) by striking (5) Depicted and inserting (5) Identifiable ; and (B) by striking depicted individual and inserting identifiable individual ; and (6) in paragraph (6)(A), as so redesignated— (A) in clause (i), by striking ; or and inserting a semicolon; (B) in clause (ii)— (i) in subclause (I), by striking individual; and inserting individual; or ; and (ii) by striking subclause (III); and (C) by adding at the end the following: (iii) an identifiable individual engaging in sexually explicit conduct; and . (b) Civil action Section 1309(b) of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851(b) ) is amended— (1) in paragraph (1)— (A) by striking paragraph (A) and inserting the following: (A) In general Except as provided in paragraph (5)— (i) an identifiable individual whose intimate visual depiction is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the consent of the identifiable individual, where such disclosure was made by a person who knows or recklessly disregards that the identifiable individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for relief as set forth in paragraph (3); (ii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced or possessed the digital forgery with intent to disclose it, or knowingly disclosed or solicited the digital forgery, if— (I) the identifiable individual did not consent to such production, disclosure, solicitation, or possession; (II) the person knew or recklessly disregarded that the identifiable individual did not consent to such production, disclosure, solicitation, or possession; and (III) such production, disclosure, solicitation, or possession is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce; and (iii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced the digital forgery if— (I) the identifiable individual did not consent to such production; (II) the person knew or recklessly disregarded that the identifiable individual did not consent to such production; and (III) such production is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce. ; and (B) in subparagraph (B)— (i) in the heading, by inserting identifiable before individuals ; and (ii) by striking an individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the individual and inserting an identifiable individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the identifiable individual ; (2) in paragraph (2)— (A) in subparagraph (A)— (i) by inserting identifiable before individual ; (ii) by striking depiction and inserting intimate visual depiction or digital forgery ; and (iii) by striking distribution and inserting disclosure, solicitation, or possession ; and (B) in subparagraph (B)— (i) by inserting identifiable before individual; (ii) by inserting or digital forgery after each place the term depiction appears; and (iii) by inserting , solicitation, or possession after disclosure ; (3) by redesignating paragraph (4) as paragraph (5); (4) by striking paragraph (3) and inserting the following: (3) Relief In a civil action filed under this section— (A) an identifiable individual may recover the actual damages sustained by the individual or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred; and (B) the court may, in addition to any other relief available at law, order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to cease display or disclosure of the intimate visual depiction or digital forgery. (4) Preservation of privacy In a civil action filed under this section, the court may issue an order to protect the privacy of a plaintiff, including by— (A) permitting the plaintiff to use a pseudonym; (B) requiring the parties to redact the personal identifying information of the plaintiff from any public filing, or to file such documents under seal; and (C) issuing a protective order for purposes of discovery, which may include an order indicating that any intimate visual depiction or digital forgery shall remain in the care, custody, and control of the court. ; (5) in paragraph (5)(A), as so redesignated— (A) by striking image and inserting visual depiction or digital forgery ; and (B) by striking depicted and inserting identifiable ; and (6) by adding at the end the following: (6) Statute of limitations Any action commenced under this section shall be barred unless the complaint is filed not later than 10 years from the later of— (A) the date on which the identifiable individual reasonably discovers the violation that forms the basis for the claim; or (B) the date on which the identifiable individual reaches 18 years of age. (7) Duplicative recovery barred No relief may be ordered under paragraph (3) against a person who is subject to a judgment under section 2255 of title 18, United States Code, for the same conduct involving the same identifiable individual and the same intimate visual depiction or digital forgery. . (c) Continued applicability of Federal, State, and Tribal law (1) In general This Act shall not be construed to impair, supersede, or limit a provision of Federal, State, or Tribal law. (2) No preemption Nothing in this Act shall prohibit a State or Tribal government from adopting and enforcing a provision of law governing nonconsensual activity involving a digital forgery, as defined in section 1309(a) of the Consolidated Appropriations Act, 2022 ( 15 U.S.C. 6851(a) ), as amended by this Act, that is at least as protective of the rights of a victim as this Act. 3. Severability If any provision of this Act, an amendment made by this Act, or the application of such a provision or amendment to any person or circumstance, is held to be unconstitutional, the remaining provisions of and amendments made by this Act, and the application of the provision or amendment held to be unconstitutional to any other person or circumstance, shall not be affected thereby.