DEEP FAKES Accountability Act

I 117TH CONGRESS 1ST SESSION H. R. 2395 To combat the spread of disinformation through restrictions on deep-fake video alteration technology. IN THE HOUSE OF REPRESENTATIVES APRIL 8, 2021 Ms. CLARKE of New York (for herself, Ms. ADAMS, Ms. BASS, Mr. BUTTERFIELD, Mr. CARSON, Mr. CLEAVER, Mr. COHEN, Mr. DESAULNIER, Mr. GREEN of Texas, Ms. JACKSON LEE, Ms. JOHNSON of Texas, Ms. KELLY of Illinois, Mr. KRISHNAMOORTHI, Ms. KUSTER, Mr. LAWSON of Florida, Mr. MALINOWSKI, Mr. MCGOVERN, Ms. MOORE of Wisconsin, Ms. NORTON, Ms. PLASKETT, Mr. RUSH, Mr. THOMPSON of Mississippi, Mrs. WATSON COLEMAN, and Ms. WILSON of Florida) in- troduced 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 with- in the jurisdiction of the committee concerned A BILL To combat the spread of disinformation through restrictions on deep-fake video alteration technology. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Defending Each and 4 Every Person from False Appearances by Keeping Exploi- 5 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2395 IH tation Subject to Accountability Act of 2021’’ or the 1 ‘‘DEEP FAKES Accountability Act’’. 2 SEC. 2. TRANSPARENCY REQUIREMENTS. 3 (a) IN GENERAL.—Chapter 47 of title 18, United 4 States Code, is amended by adding at the end the fol- 5 lowing: 6 ‘‘§ 1041. Advanced technological false personation 7 record 8 ‘‘(a) IN GENERAL.—Except as provided in subsection 9 (j), any person who, using any means or facility of inter- 10 state or foreign commerce, produces an advanced techno- 11 logical false personation record with the intent to dis- 12 tribute such record over the internet or knowledge that 13 such record shall be so distributed, shall ensure such 14 record, complies with— 15 ‘‘(1) the watermark requirement under sub- 16 section (b); and 17 ‘‘(2)(A) in the case of an audiovisual record, 18 the disclosure requirements under subsection (c); 19 ‘‘(B) in the case of a visual record, the disclo- 20 sure requirements under subsection (d); or 21 ‘‘(C) in the case of an audio record, the disclo- 22 sure requirements under subsection (e). 23 ‘‘(b) DIGITAL WATERMARK.—Any advanced techno- 24 logical false personation record which contains a moving 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2395 IH visual element shall contain an embedded digital water- 1 mark clearly identifying such record as containing altered 2 audio or visual elements. 3 ‘‘(c) AUDIOVISUAL DISCLOSURE.—Any advanced 4 technological false personation records containing both an 5 audio and a visual element shall include— 6 ‘‘(1) not less than 1 clearly articulated verbal 7 statement that identifies the record as containing al- 8 tered audio and visual elements, and a concise de- 9 scription of the extent of such alteration; and 10 ‘‘(2) an unobscured written statement in clearly 11 readable text appearing at the bottom of the image 12 throughout the duration of the visual element that 13 identifies the record as containing altered audio and 14 visual elements, and a concise description of the ex- 15 tent of such alteration. 16 ‘‘(d) VISUAL DISCLOSURE.—Any advanced techno- 17 logical false personation records exclusively containing a 18 visual element shall include an unobscured written state- 19 ment in clearly readable text appearing at the bottom of 20 the image throughout the duration of the visual element 21 that identifies the record as containing altered visual ele- 22 ments, and a concise description of the extent of such al- 23 teration. 24 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2395 IH ‘‘(e) AUDIO DISCLOSURE.—Any advanced techno- 1 logical false personation records exclusively containing an 2 audio element shall include, at the beginning of such 3 record, a clearly articulated verbal statement that identi- 4 fies the record as containing altered audio elements and 5 a concise description of the extent of such alteration, and 6 in the event such record exceeds two minutes in length, 7 not less than 1 additional clearly articulated verbal state- 8 ment and additional concise description at some interval 9 during each two-minute period thereafter. 10 ‘‘(f) PENALTY.— 11 ‘‘(1) CRIMINAL PENALTY.— 12 ‘‘(A) FAILURE TO DISCLOSE.—Whoever 13 knowingly violates subsection (a)— 14 ‘‘(i) with the intent to humiliate or 15 otherwise harass the person falsely exhib- 16 ited, provided the advanced technological 17 false personation record contains sexual 18 content of a visual nature and appears to 19 feature such person engaging in such sex- 20 ual acts or in a state of nudity; 21 ‘‘(ii) with the intent to cause violence 22 or physical harm, incite armed or diplo- 23 matic conflict, or interfere in an official 24 proceeding, including an election, provided 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 2395 IH the advanced technological false 1 personation record did in fact pose a cred- 2 ible threat of instigating or advancing 3 such; 4 ‘‘(iii) in the course of criminal conduct 5 related to fraud, including securities fraud 6 and wire fraud, false personation, or iden- 7 tity theft; or 8 ‘‘(iv) by a foreign power, or an agent 9 thereof, with the intent of influencing a do- 10 mestic public policy debate, interfering in a 11 Federal, State, local, or territorial election, 12 or engaging in other acts which such power 13 may not lawfully undertake; 14 shall be fined under this title, imprisoned for 15 not more than 5 years, or both. 16 ‘‘(B) ALTERING DISCLOSURES.—Whoever 17 knowingly alters an advanced technological false 18 personation record to remove or meaningfully 19 obscure the disclosures required under sub- 20 section (a) with the intent to distribute such al- 21 tered record and— 22 ‘‘(i) with the intent to humiliate or 23 otherwise harass the person falsely exhib- 24 ited, provided the advanced technological 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 2395 IH false personation record contains sexual 1 content of a visual nature and appears to 2 feature such person engaging in such sex- 3 ual acts or in a state of nudity; 4 ‘‘(ii) with the intent to cause violence 5 or physical harm, incite armed or diplo- 6 matic conflict, or interfere in an official 7 proceeding, including an election, provided 8 the advanced technological false 9 personation record did in fact pose a cred- 10 ible threat of instigating or advancing 11 such; 12 ‘‘(iii) in the course of criminal conduct 13 related to fraud, including securities fraud 14 and wire fraud, false personation, or iden- 15 tity theft; or 16 ‘‘(iv) by a foreign power, or an agent 17 thereof, with the intent of influencing a do- 18 mestic public policy debate, interfering in a 19 Federal, State, local, or territorial election, 20 or engaging in other acts which such power 21 may not lawfully undertake; 22 shall be fined under this title, imprisoned for 23 not more than 5 years, or both. 24 ‘‘(2) CIVIL PENALTY.— 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 2395 IH ‘‘(A) FAILURE TO DISCLOSE.—Any person 1 who violates subsection (a) shall be subject to 2 a civil penalty of up to $150,000 per record or 3 alteration, as well as appropriate injunctive re- 4 lief. 5 ‘‘(B) ALTERING DISCLOSURES.—Any per- 6 son who alters an advanced technological false 7 personation record to remove or meaningfully 8 obscure the disclosures required under sub- 9 section (a) with the intent to distribute such al- 10 tered record shall be subject to a civil penalty 11 of up to $150,000 per record or alteration, as 12 well as appropriate injunctive relief. 13 ‘‘(g) PRIVATE RIGHT OF ACTION.— 14 ‘‘(1) IN GENERAL.—Any living individual or af- 15 filiated corporate or other entity who has been exhib- 16 ited as engaging in falsified material activity in an 17 advanced technological false personation record may 18 bring a civil action before the appropriate Federal 19 district court for damages under paragraph (2) and 20 injunctive relief under paragraph (3) against a per- 21 son who violates subsection (a) or alters an advanced 22 technological false personation record to remove or 23 meaningfully obscure the disclosures required under 24 subsection (a). 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 2395 IH ‘‘(2) DAMAGES.—Damages shall consist of the 1 greater of— 2 ‘‘(A) actual damages suffered by the living 3 person or the affiliated corporation or entity, 4 and any additional substantially derivative prof- 5 its of the person who violated subsection (a) or 6 altered an advanced technological false 7 personation record to remove or meaningfully 8 obscure the disclosures required under sub- 9 section (a); 10 ‘‘(B) $50,000 per record, if the living per- 11 son or affiliated corporation or entity experi- 12 enced a perceptible individual harm or faced a 13 tangible risk of experiencing such; 14 ‘‘(C) $100,000 per record, if the living per- 15 son or affiliated corporation or entity experi- 16 enced a perceptible individual harm or faced a 17 tangible risk of experiencing such and the 18 record purported to depict extreme or out- 19 rageous conduct by the living person; or 20 ‘‘(D) $150,000 per record, if the advanced 21 technological false personation record contains 22 explicit sexual content of a visual nature in- 23 tended to humiliate or otherwise harass the per- 24 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 2395 IH son falsely depicted as engaging in such sexual 1 acts or in a state of nudity. 2 ‘‘(3) INJUNCTIVE RELIEF.—Injunctive relief 3 under this subsection shall include mandated compli- 4 ance with the requirements described in subsection 5 (a). 6 ‘‘(h) PRIVACY PROTECTIONS.— 7 ‘‘(1) FEDERAL ACTIONS.—In pursuing criminal 8 or civil penalties under this Act, Federal authorities 9 shall, to the extent practicable, consult with living 10 persons exhibited as engaging in falsified material 11 activity in advanced technological false personation 12 records regarding measures such authorities can rea- 13 sonably undertake to protect their privacy and mini- 14 mize additional public viewings of such records. 15 ‘‘(2) PRIVATE ACTIONS.—Private actions 16 brought under subsection (g), upon petition of the 17 plaintiff, shall be permitted to be filed under seal if 18 such plaintiff can demonstrate a reasonable likeli- 19 hood that the creation of public records regarding 20 the advanced technological false personation record 21 would result in embarrassing or otherwise harmful 22 publicization of the falsified material activity in an 23 advanced technological false personation record. 24 ‘‘(i) RULES OF CONSTRUCTION.— 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 2395 IH ‘‘(1) Nothing in this section shall be interpreted 1 as authorizing the production of an advanced tech- 2 nological false personation record which includes dis- 3 closures if such record is otherwise prohibited by law 4 or regulation. 5 ‘‘(2) The word ‘advanced’ within the term ‘ad- 6 vanced technological false personation record’ shall 7 not be interpreted as narrowing the definition of 8 such term. 9 ‘‘(3) Nothing in this section shall be interpreted 10 as a defense against, or as preempting or limiting, 11 any Federal, State, local, or territorial laws, regula- 12 tions, or policies that prohibit, impose more strin- 13 gent standards in relation to, or provide additional 14 or alternative remedies or damages in relation to, 15 the production or distribution of advanced techno- 16 logical false personation records, deep fakes, or re- 17 lated content, including criminal and civil laws relat- 18 ing to copyright, tortious conduct, and false 19 personation. 20 ‘‘(j) EXCEPTIONS.— 21 ‘‘(1) DISCLOSURE.—The requirements under 22 subsections (c), (d), and (e) shall not apply with re- 23 spect to any advanced technological false personation 24 record— 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 2395 IH ‘‘(A) containing alternative disclosures re- 1 garding the falsity of the exhibited material ac- 2 tivities which a reasonable person would deem 3 to be more prominent than those required 4 under subsection (c), (d), or (e), as the case 5 may be; 6 ‘‘(B) during the process of producing such 7 record, provided the ultimately distributed 8 record is in compliance; 9 ‘‘(C) which primarily contains images or 10 sound recordings of actual persons, such as per- 11 forming artists, and have not been substantially 12 digitally modified; 13 ‘‘(D) created in connection with editing a 14 motion picture, television, music, or similar pro- 15 duction or creating a derivative production 16 thereof, the original content of which was cre- 17 ated prior to the enactment of this Act, in 18 which the person appearing provided consent to 19 their original appearance; 20 ‘‘(E) appearing in a context such that a 21 reasonable person would not mistake the fal- 22 sified material activity for actual material activ- 23 ity of the exhibited living person, such as par- 24 ody shows or publications, historical reenact- 25 VerDate Sep 11 2014 05:34 May 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2395.IH H2395 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 2395 IH ments, or fictionalized radio, television, or mo- 1 tion picture programming; or 2 ‘‘(F) produced by an officer or employee of 3 the United States, or under the authority there- 4 of, in furtherance of public safety or national 5 secur [Text truncated for display. Full text available on Congress.gov.]