DEEPFAKES Accountability Act

Bill: 118-hr-5586
Sponsor: full_name: Rep. Clarke, Yvette D. [D-NY-9]
Introduced: 2023-09-20
Policy area: Crime and Law Enforcement
Latest action: action_date: 2023-09-20
text: Referred to the Subcommittee on Emergency Management and Technology.

Summaries:

tv_txt: I 118th CONGRESS 1st Session H. R. 5586 IN THE HOUSE OF REPRESENTATIVES September 20, 2023 Ms. Clarke of New York (for herself and Mr. Ivey ) introduced the following bill; which was referred to the Committee on the Judiciary , and in addition to the Committees on Energy and Commerce , and Homeland Security , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To protect national security against the threats posed by deepfake technology and to provide legal recourse to victims of harmful deepfakes.

1. Short title This Act may be cited as the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2023 or the DEEPFAKES Accountability Act . 2. Transparency requirements (a) In general Chapter 47 of title 18, United States Code, is amended by adding at the end the following: 1041. Advanced technological false personation record (a) In general Except as provided in subsection (j), any person who, using any means or facility of interstate or foreign commerce, produces an advanced technological false personation record with the intent to distribute such record over the internet or knowledge that such record shall be so distributed, shall ensure such record, complies with— (1) the requirement under subsection (b); and (2) (A) in the case of an audiovisual record, the disclosure requirements under subsection (c); (B) in the case of a visual record, the disclosure requirements under subsection (d); or (C) in the case of an audio record, the disclosure requirements under subsection (e). (b) Content provenance Any advanced technological false personation record which contains a moving visual element shall contain technologies, such as content provenance technologies, that clearly identify such record as containing altered audio or visual elements, or as having been entirely created through generative artificial intelligence or similar technologies. (c) Audiovisual disclosure Any advanced technological false personation records containing both an audio and a visual element shall include— (1) not less than 1 clearly articulated verbal statement that identifies the record as containing altered audio and visual elements, and a concise description of the extent of such alteration; (2) an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered audio and visual elements, and a concise description of the extent of such alteration; and (3) a link, icon, or similar tool to signal that the content has been altered by, or is product of, generative artificial intelligence or similar technology. (d) Visual disclosure Any advanced technological false personation records exclusively containing a visual element shall include an unobscured written statement in clearly readable text appearing at the bottom of the image throughout the duration of the visual element that identifies the record as containing altered visual elements, and either— (1) a concise description of the extent of such alteration; or (2) a clearly visible link, icon, or similar tool to signal that the content has been altered by, or is the product of, generative artificial intelligence or similar technology. (e) Audio disclosure Any advanced technological false personation records exclusively containing an audio element shall include, at the beginning of such record, a clearly articulated verbal statement that identifies the record as containing altered audio elements and a concise description of the extent of such alteration, and in the event such record exceeds two minutes in length, not less than 1 additional clearly articulated verbal statement and additional concise description at some interval during each two-minute period thereafter. (f) Penalty (1) Criminal penalty (A) Failure to disclose Whoever knowingly fails to comply with the requirements under subsection (a)— (i) with the intent to humiliate or otherwise harass the person falsely exhibited, provided the advanced technological false personation record contains sexual content of a visual nature and appears to feature such person engaging in such sexual acts or in a state of nudity; (ii) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, including an election, provided the advanced technological false personation record did in fact pose a credible threat of instigating or advancing such; (iii) in the course of criminal conduct related to fraud, including securities fraud and wire fraud, false personation, or identity theft; or (iv) by a foreign power, or an agent thereof, with the intent of influencing a domestic public policy debate, interfering in a Federal, State, local, or territorial election, or engaging in other acts which such power may not lawfully undertake; shall be fined under this title, imprisoned for not more than 5 years, or both. (B) Altering disclosures Whoever knowingly alters an advanced technological false personation record to remove or meaningfully obscure the disclosures required under subsection (a) with the intent to distribute such altered record and— (i) with the intent to humiliate or otherwise harass the person falsely exhibited, provided the advanced technological false personation record contains sexual content of a visual nature and appears to feature such person engaging in such sexual acts or in a state of nudity; (ii) with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, including an election, provided the advanced technological false personation record did in fact pose a credible threat of instigating or advancing such; (iii) in the course of criminal conduct related to fraud, including securities fraud and wire fraud, false personation, or identity theft; or (iv) by a foreign power, or an agent thereof, with the intent of influencing a domestic public policy debate, interfering in a Federal, State, local, or territorial election, or engaging in other acts which such power may not lawfully undertake; shall be fined under this title, imprisoned for not more than 5 years, or both. (2) Civil penalty (A) Failure to disclose Any person who violates subsection (a) shall be subject to a civil penalty of up to $150,000 per record or alteration, as well as appropriate injunctive relief. (B) Altering disclosures Any person who alters an advanced technological false personation record to remove or meaningfully obscure the disclosures required under subsection (a) with the intent to distribute such altered record shall be subject to a civil penalty of up to $150,000 per record or alteration, as well as appropriate injunctive relief. (g) Private right of action (1) In general Any person who has been exhibited as engaging in falsified material activity in an advanced technological false personation record may bring a civil action before the appropriate Federal district court for damages under paragraph (2) and injunctive relief under paragraph (3) against a person who violates subsection (a) or alters an advanced technological false personation record to remove or meaningfully obscure the disclosures required under subsection (a). (2) Damages Damages shall consist of the greater of— (A) actual damages suffered by the living person or the affiliated corporation or entity, and any additional substantially derivative profits of the person who violated subsection (a) or altered an advanced technological false personation record to remove or meaningfully obscure the disclosures required under subsection (a); (B) $50,000 per record, if the living person or affiliated corporation or entity experienced a perceptible individual harm or faced a tangible risk of experiencing such harm; (C) $100,000 per record, if the living person or affiliated corporation or entity experienced a perceptible individual harm or faced a tangible risk of experiencing such harm and the record purported to depict extreme or outrageous conduct by the living person; or (D) $150,000 per record, if the advanced technological false personation record contains explicit sexual content of a visual nature intended to humiliate or otherwise harass the person falsely depicted as engaging in such sexual acts or in a state of nudity. (3) Injunctive relief Injunctive relief under this subsection shall include a requirement to comply with subsection (a). (h) Privacy protections (1) Federal actions In enforcing this section, the Attorney General shall, to the extent practicable, consult with living persons exhibited as engaging in falsified material activity in advanced technological false personation records regarding measures the Attorney General can reasonably undertake to protect the privacy of such persons and minimize additional public viewings of such records. (2) Private actions A court in which a private action is brought under subsection (g) shall permit the plaintiff, upon petition, to file the claim under seal if the plaintiff can demonstrate a reasonable likelihood that the creation of public records regarding the advanced technological false personation record would result in embarrassing or otherwise harmful publicization of the falsified material activity in an advanced technological false personation record. (i) Rules of construction (1) Nothing in this section shall be interpreted as authorizing the production of an advanced technological false personation record which includes disclosures if such record is otherwise prohibited by law or regulation. (2) The word advanced within the term advanced technological false personation record shall not be interpreted as narrowing the definition of such term. (3) Nothing in this section shall be interpreted as a defense against, or as preempting or limiting, any Federal, State, local, or territorial laws, regulations, or policies that prohibit, impose more stringent standards in relation to, or provide additional or alternative remedies or damages in relation to, the production or distribution of advanced technological false personation records, deepfakes, or related content, including criminal and civil laws relating to copyright, tortious conduct, and false personation. (j) Exceptions (1) Disclosure The requirements under subsections (c), (d), and (e) shall not apply with respect to any advanced technological false personation record— (A) containing alternative disclosures regarding the falsity of the exhibited material activities which a reasonable person would deem to be more prominent than those required under subsection (c), (d), or (e), as the case may be; (B) during the process of producing such record, provided the ultimately distributed record is in compliance with such requirements; (C) which primarily contains images or sound recordings of actual persons, such as performing artists, and have not been substantially digitally modified; (D) created in connection with editing a motion picture, television, music, or similar production or creating a derivative production thereof, the original content of which was created prior to the enactment of this section, in which the person appearing provided consent to their original appearance; (E) appearing in a context such that a reasonable person would not mistake the falsified material activity for actual material activity of the exhibited living person, such as parody shows or publications, historical reenactments, or fictionalized radio, television, or motion picture programming; or (F) produced by an officer or employee of the United States, or under the authority thereof, in furtherance of public safety or national security. (2) Digital content provenance The digital content provenance requirement under subsection (b) shall not apply with respect to any class of advanced technological false personation records which the Attorney General determines by regulation should be excluded from such requirement. (k) Advisory opinions, waiver, and standards (1) Advisory opinions The Attorney General shall— (A) establish a process by which any producer of audio, visual, or audiovisual content may seek an advisory opinion from the Attorney General regarding whether their proposed production is required to comply with the requirements under this section; (B) respond to a request described in subparagraph (A) not later than 30 days after the date of submission; and (C) not pursue enforcement action under this section against any producer who relied in good faith on such an advisory opinion. (2) Waiver The Attorney General is authorized to grant, and shall establish and publish procedures to govern the issuance of, waivers from any requirements under this section to additional categories of advanced technological false personation records upon petition of any producer thereof if such producer can demonstrate that compliance with this section would impede their ability to engage in lawful activities protected by the First Amendment of the Constitution. (3) Digital content provenance standards Not later than 1 year after the date of enactment of this section, the Attorney General shall issue rules governing the technical specifications of the digital content provenance required under subsection (b) which stall include, if such is determined appropriate, a requirement for such digital content provenance to contain embedded or linked metadata. (l) Venue Any action under this section may be brought, in addition to in any district otherwise described in section 1391 of title 28, in the district where or the person falsely depicted in the advanced technological false personation record resides. (m) Extraterritoriality There is extraterritorial Federal jurisdiction over an offense under this section if the defendant or the depicted person is a citizen or permanent resident of the United States. (n) Definitions (1) Advanced technological false personation record The term advanced technological false personation record means any deepfake, which— (A) a reasonable person, having considered the visual or audio qualities of the record and the nature of the distribution channel in which the record appears, would believe accurately exhibits— (i) any material activity of a living person which such living person did not in fact undertake; or (ii) any material activity of a deceased person which such deceased person did not in fact undertake, and the exhibition of which is substantially likely to either further a criminal act or result in improper interference in an official proceeding, a public policy debate, or an election; and (B) was produced without the consent of such living person, or in the case of a deceased person, such person or the heirs thereof. (2) Material activity The term material activity means any speech, conduct, or depiction which causes, or a reasonable person would recognize has a tendency to cause perceptible individual or societal harm, including misrepresentation, reputational damage, embarrassment, harassment, financial losses, the incitement of violence, the alteration of a public policy debate or election, or the furtherance of any unlawful act. (3) Deepfake The term deepfake means any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof— (A) which appears to authentically depict any speech or conduct of a person who did not in fact engage in such speech or conduct; and (B) the production of which was substantially dependent upon technical means, rather than the ability of another person to physically or verbally impersonate such person. (o) Reports The Attorney General, in coordination with other relevant Federal agencies, shall submit a report to Congress 5 years after the date of enactment of this section, and 5 years thereafter, describing trends related to prosecutions and civil penalties pursued under this section. 1042. Deepfakes victim assistance (a) Coordinator for violations directed by foreign nation-States The Attorney General shall designate a coordinator in each United States Attorney’s Office to receive reports from the public regarding potential violations of section 1041 relating to deepfake depictions produced or distributed by any foreign nation-state, or any agent acting on its behalf, and coordinate prosecutions for any such violation. (b) Coordinator for false intimate depictions The Attorney General shall designate a coordinator in each United States Attorney’s Office to receive reports from the public regarding potential violations of section 1041 relating to deepfake depictions of an intimate and sexual nature, and coordinate prosecutions for any such violation. (c) Plan and guidance On the effective date of this section, the Attorney General shall publish a report containing— (1) a plan to effectuate and enforce section 1041; (2) a description of the efforts of the Russian Federation and the People’s Republic of China, and such other states or groups as the Attorney General determines appropriate, to use deepfake technology to impact elections or public policy debates in the United States or other democracies; (3) a description of the impact of intimate and sexual deepfakes on women and marginalized communities; and (4) in order to increase the likelihood of such prosecutions, official guidance to Federal prosecutors regarding any potential legal concerns that may impede such prosecutions absent clarification. . (b) Clerical amendment The table of sections for chapter 47 of title 18, United States Code, is amended by adding at the end the following: 1041. Advanced technological false personation record. 1042. Deepfakes victim assistance. . 3. Transparency facilitation (a) In general Any person who, in or affecting interstate or foreign commerce, for commercial purposes, develops a product that such person reasonably believes, in the context of the intended distribution of the product, will be used to produce deepfakes, as such term is defined in section 1041 of title 18, United States Code, as added by this Act, shall— (1) ensure such product has the technical capability to insert digital content provenance and disclosures of the nature described in such section into such deepfakes; and (2) include terms of use or other analogous disclosures with such product, which require the user of such product to affirmatively acknowledge their general awareness of their legal obligations under section 1041 of title 18, United States Code. (b) Enforcement by Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of this section or a regulation promulgated under this section shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices. (2) Powers of Commission The Federal Trade Commission shall enforce this section and the regulations promulgated under this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this section. Any person who violates this section or a regulation promulgated under this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. (3) Rulemaking The Federal Trade Commission may promulgate regulations, in accordance with section 553 of title 5, United States Code, to implement this section. 4. In rem litigation against foreign and unknown defendants (a) In general A living person, or an affiliated corporate or other entity substantially connected to such living person, exhibited as engaging in falsified material activity in an advanced technological false personation record (as such term is defined in section 1041 of title 18, United States Code), and subject to the exceptions under section 1041(j) of such title, may file an in rem civil action against an advanced technological false personation record, in the judicial district in which such living person or related entity resides, if— (1) the producer of such advanced technological false personation record is in violation of any provision in section 1041 of title 18, United States Code, for which a private remedy is provided; and (2) the court finds that such living person or related entity— (A) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action in section 1041 of title 18, United States Code, as added by section 2 of this Act; or (B) through reasonable due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) by— (i) if practicable, sending a notice of the alleged violation and intent to proceed under this paragraph to the producer of the record; (ii) publishing notice of the action as the court may direct promptly after filing the action; and (iii) complying with such other due diligence measures the Attorney General promulgates through regulation. (b) Service of process The actions under subsection (a)(2)(B)(ii) shall constitute service of process. (c) Jurisdiction In an in rem action under this section, an advanced false personation record shall be deemed to have its situs in the judicial district in which the person falsely depicted as engaging in material activity resides. (d) Remedies The remedies in an in rem action under this section shall be limited to— (1) a court order declaring there to be a substantial likelihood that the material activity depicted in such advanced technological false personation record is false and lacking the digital content provenance and disclosures required under section 1041 of title 18, United States Code, as added by section 2 of this Act; and (2) as appropriate at the discretion of the court, the forfeiture by the producer of such advanced technological false personation record of profits directly derived from the production and distribution of such record. (e) Estoppel and additional remedies A court order under subsection (d) may not be used for purposes of estoppel in subsequent litigation should the living person or related entity bringing suit file additional actions under other provisions of law. The in rem action established under this Act shall be in addition to any other civil action or remedy otherwise applicable and any other jurisdiction that otherwise exists, whether in rem or in personam. 5. Fraud and related activity in connection with audiovisual and biometric identity authentication (a) Offense Section 1028 of title 18, United States Code, is amended— (1) in subsection (a)— (A) in paragraph (1), by striking or a false identification document and inserting a false identification document, or a false audiovisual identification record ; (B) in paragraph (4), by striking or a false identification document, and inserting a false identification document, or a false audiovisual identification record, ; and (C) in paragraph (5), by striking a false identification document and inserting a false identification document, false audiovisual identification record ; (2) in subsection (b)(1)(A), by striking or false identification document and inserting a false identification document, or a false audiovisual identification record ; (3) in subsection (c)(3)(A), by inserting after a document the following: or a false audiovisual identification record ; and (4) in subsection (d)— (A) in paragraph (1), insert after letters, the following: biometric indicators ; (B) in paragraph (7), insert after other unique physical representation the following: including facial dimensions or characteristics, or visual imagery or content which appears to authentically depict any speech or conduct of a person who did not in fact engage in such speech or conduct ; (C) in paragraph (11), strike and at the end; (D) in paragraph (12)(B), strike the period at the end and insert ; and ; and (E) by adding at the end the following: (13) The term false audiovisual identification record means any advanced technological false personation record (as such term is defined in section 1041)— (A) used or attempted to be used by a person for the purpose of assuming the identity of the person depicted in the advanced technological false personation record without such other person’s consent; and (B) (i) the use or attempted use of which is intended to further any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State, territorial, or local law; (ii) depicts obscenity or sexually explicit conduct, considering the extent to which the record appeals to the prurient interest, is patently offensive, and lacks serious literary, artistic, political, or scientific value; (iii) depicts fighting words, which by their very utterance, inflict injury or tend to incite an immediate breach of the peace; (iv) constitutes a call to imminent lawless action, and is likely, whether on its own or collectively in connection with related records, to incite or produce such action; or (v) depicts or constitutes other activities or speech that the Attorney General determines by regulation pose a credible threat to the national interests of the United States, which, as of the date of such regulation, have been determined by a Federal court to constitute an unprotected class of speech under the first amendment. . (b) Rule of construction The amendments made by subsection (a) may not be interpreted as imposing any limitations on the applicability of section 1028 of title 18, United States Code, to any item which was covered by such section prior to the date of enactment of this Act. 6. False personation (a) In general Chapter 43 of title 18 of the United States Code is amended by adding at the end a new section as follows: 918. Deepfake false personation generally Section 911 through 917 of this chapter shall be interpreted to include producers, or persons who substantially and knowingly contribute to the production and unlawful use of, advanced technological false personation records (as such term is defined in section 1041), subject to the exceptions under section 4041(j). . (b) Clerical amendment The table of sections for chapter 43 of title 18, United States Code, is amended by adding at the end the following: 918. Deepfake false personation generally. . 7. Detection of deepfakes (a) Establishment of task force The Secretary of Homeland Security, in coordination with the heads of other relevant Federal entities, shall establish a task force within the Science and Technology Directorate of the Department of Homeland Security (in this section referred to as the Deepfakes Task Force ), to— (1) advance efforts of the United States Government to combat the national security implications of deepfakes; (2) as appropriate, research and develop technologies to detect, or otherwise counter and combat, deepfakes and other advanced image manipulation methods and distinguish such deepfakes or related forgeries from legitimate audiovisual recordings or visual depictions of actual events; (3) provide support, both administrative and scientific, to other Federal entities researching such technologies; (4) encourage efforts of the United States Government to adopt such technologies; and (5) facilitate discussion and appropriate cooperation between the United States Government and relevant private sector technology enterprises or other nongovernmental entities, including academic and research institutions, regarding the identification of deepfakes or other advanced image manipulation methods. (b) Private sector collaboration If the United States Government develops technologies to reliably detect deepfakes and other advanced image manipulation methods and distinguish such deepfakes or related forgeries from legitimate audiovisual recordings or visual depictions of actual events, the President shall, unless the President determines such is contrary to the national interests of the United States, seek to make such technologies available to appropriate United States private sector internet platforms, including social networks. (c) Annual report Not later than one year after the date of the enactment of this Act and annually thereafter for five years, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate an unclassified report, which may contain a classified annex, describing the following: (1) The activities of the Deepfakes Task Force. (2) As appropriate, technological progress related to the detection of deepfakes and other advanced image manipulation methods. (3) New developments related to the national security threat posed by deepfakes and other advanced image manipulation methods, which shall include a description of any efforts of the Russian Federation and the People’s Republic of China, and such other countries or groups as the Secretary determines appropriate, to distribute deepfakes or related forgeries in the United States or other democracies. (4) Related efforts of the United States to combat and counter deepfakes and other advanced image manipulation methods. (d) Definition The term deepfake shall have the meaning given such term in section 1041 of title 18, United States Code, as added by section 2 of this Act. 8. Congressional notification The Secretary of Homeland Security shall annually submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a classified written notification and, upon request, a briefing, regarding any known attempts of foreign countries to use deepfakes (as such term is defined in section 1041 of title 18, United States Code, as added by section 2 of this Act) or other advanced image manipulation methods to influence or otherwise interfere in an official proceeding within the United States, including an election. 9. Information sharing The Secretary of Homeland Security shall take such actions as may be necessary to establish in the Department of Homeland Security an information sharing program relating to deepfakes (as such term is defined in section 1041 of title 18, United States Code, as added by section 2 of this Act) and other advanced image manipulation methods to permit online platforms (as defined in section 10(d) of this Act) to alert other such platforms to prevent the spread of a malicious deepfake or other related forgery, as well as to promptly alert for public dissemination news organizations regarding such deepfake or related forgery. 10. Requirements for online platforms (a) Technical capability relating to digital content provenance A provider of an online platform shall ensure such platform has the technical capability to insert digital content provenance and disclosures of the nature described in section 1041 of title 18, United States Code, as added by this Act, into any deepfakes that are distributed on such platform. (b) System To detect deepfakes A provider of an online platform shall have in place a system to detect deepfakes in the content distributed on such platform. (c) Enforcement by Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of this section or a regulation promulgated under this section shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices. (2) Powers of Commission The Federal Trade Commission shall enforce this section and the regulations promulgated under this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this section. Any person who violates this section or a regulation promulgated under this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. (3) Rulemaking The Federal Trade Commission may promulgate regulations, in accordance with section 553 of title 5, United States Code, to implement this section. (d) Definitions In this section: (1) Deepfake The term deepfake has the meaning given such term in section 1041 of title 18, United States Code, as added by this Act. (2) Online platform The term online platform means any public-facing website, online service, online application, or mobile application which is operated for commercial purposes and provides a community forum for user-generated content, including a social network site, content aggregation service, or service for sharing videos, images, games, audio files, or other content. 11. Effective date This Act and the amendments made by this Act shall take effect on the date that is one year after the date of enactment of this Act.