END CSAM Act

II 118TH CONGRESS 1ST SESSION S. 823 To hold social media companies liable for hosting or distributing child sexual abuse material. IN THE SENATE OF THE UNITED STATES MARCH 15, 2023 Mr. HAWLEY introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To hold social media companies liable for hosting or distributing child sexual abuse material. 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 ‘‘Everyone can Notice- 4 and-Takedown Distribution of Child Sexual Abuse Mate- 5 rial Act’’ or the ‘‘END CSAM Act’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) CHILD SEXUAL ABUSE MATERIAL.—The 9 term ‘‘child sexual abuse material’’ has the meaning 10 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 2 •S 823 IS given the term ‘‘child pornography’’ in section 2256 1 of title 18, United States Code. 2 (2) COVERED INTERACTIVE COMPUTER SERV- 3 ICE.—The term ‘‘covered interactive computer serv- 4 ice’’ means an interactive computer service— 5 (A) provided through a website, online ap- 6 plication, or mobile application (including a sin- 7 gle interactive computer service that is provided 8 through more than one such website or applica- 9 tion); 10 (B) through which information provided by 11 another information content provider is distrib- 12 uted; 13 (C) that enables an individual user to cre- 14 ate an account for the purpose of viewing, gen- 15 erating, or modifying content that can be 16 viewed, shared, or otherwise interacted with by 17 other third-party users of the interactive com- 18 puter service; and 19 (D) that does not have peer-to-peer mes- 20 saging as its principal function. 21 (3) INTERACTIVE COMPUTER SERVICE.—The 22 term ‘‘interactive computer service’’ has the meaning 23 given the term in section 230 of the Communica- 24 tions Act of 1934 (47 U.S.C. 230). 25 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 3 •S 823 IS (4) MINOR.—The term ‘‘minor’’ has the mean- 1 ing given the term in section 2256 of title 18, 2 United States Code. 3 (5) SOCIAL MEDIA COMPANY.—The term ‘‘social 4 media company’’— 5 (A) means a company that provides, in or 6 affecting interstate or foreign commerce, a cov- 7 ered interactive computer service; and 8 (B) does not include an organization de- 9 scribed in section 501(c) of the Internal Rev- 10 enue Code of 1986 and exempt from taxation 11 under section 501(a) of such Code. 12 SEC. 3. CIVIL LIABILITY FOR SOCIAL MEDIA COMPANIES 13 HOSTING PROHIBITED CONTENT. 14 (a) PROHIBITION.—It shall be unlawful for a social 15 media company to knowingly or recklessly host or dis- 16 tribute child sexual abuse material. 17 (b) CIVIL PENALTY.—A social media company that 18 violates subsection (a) shall be liable to the United States 19 Government for a civil penalty of not less than $100,000 20 and not more than $500,000, in accordance with this Act. 21 SEC. 4. NOTICE PROCESS FOR COMPANIES HOSTING PRO- 22 HIBITED CONTENT. 23 (a) IN GENERAL.—A social media company shall— 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 4 •S 823 IS (1) provide a notice process for persons to make 1 the company aware that the company is hosting or 2 distributing content in apparent violation of section 3 3(a); and 4 (2)(A) designate an agent of the company to re- 5 ceive notice under the notice process described in 6 paragraph (1); and 7 (B) make available on the website, web service, 8 or web application of the company, in a location ac- 9 cessible to the public, the name, address, phone 10 number, and electronic mail address of the agent 11 designated under subparagraph (A). 12 (b) NOTICE PROCESS REQUIREMENTS.—The notice 13 process required under subsection (a) shall readily enable 14 a person to provide to the agent designated under sub- 15 section (a)(2) substantially the following: 16 (1) Identification of each visual depiction 17 claimed to be child sexual abuse material. 18 (2) Information reasonably sufficient to permit 19 the agent receiving the notice to contact the person, 20 such as an address, telephone number, or electronic 21 mail address. 22 (3) A brief statement that— 23 (A) affirms that the person has a good 24 faith belief that each visual depiction described 25 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 5 •S 823 IS in paragraph (1) is child sexual abuse material; 1 and 2 (B) explains why the person has that be- 3 lief. 4 (c) LIABILITY PROTECTION FOR DISABLING ACCESS 5 TO OR REMOVING VISUAL DEPICTION.— 6 (1) IN GENERAL.—Except as provided in para- 7 graph (2), a social media company shall not be liable 8 for any claim based on the company’s good faith dis- 9 abling of access to, or removal of, a visual depiction 10 that the company believes is child sexual abuse ma- 11 terial. 12 (2) NO PROTECTION FOR DISABLING ACCESS OR 13 REMOVING MORE THAN 10 DAYS AFTER RECEIVING 14 NOTICE.—Paragraph (1) shall not apply with respect 15 to a visual depiction that a social media company 16 disables access to or removes if the company— 17 (A) was notified about the visual depiction 18 under the notice process required under sub- 19 section (a); and 20 (B) failed to disable access to or remove 21 the visual depiction during the 10-day period 22 beginning on the date of the notice described in 23 subparagraph (A). 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 6 •S 823 IS (d) LACK OF NOTICE NOT AN EXCUSE FOR VIOLA- 1 TION.—It shall not be a defense to an alleged violation 2 of section 3(a) that a social media company did not receive 3 notice of the alleged violation under the notice process re- 4 quired under subsection (a) of this section. 5 (e) DETERMINATION BY SOCIAL MEDIA COMPANY 6 THAT VISUAL DEPICTION IS NOT CHILD SEXUAL ABUSE 7 MATERIAL.—If a social media company receives notice of 8 an alleged violation of section 3(a) under the notice proc- 9 ess required under subsection (a) of this section and deter- 10 mines that the content alleged to be hosted or distributed 11 in violation of section 3(a) is not child sexual abuse mate- 12 rial, the company shall, not later than the last day of the 13 10-day period beginning on the date of the notice, submit 14 to the person who provided the notice a response that— 15 (1) confirms receipt of the notice; 16 (2) states that the company determined that 17 the content is not child sexual abuse material; and 18 (3) provides an explanation for the determina- 19 tion described in paragraph (2), including any rel- 20 evant evidence. 21 SEC. 5. QUI TAM CIVIL ACTION. 22 (a) ACTIONS BY PRIVATE PERSONS.— 23 (1) RIGHT OF ACTION.— 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 7 •S 823 IS (A) IN GENERAL.—If a person provides 1 notice to a social media company regarding a 2 visual depiction under the notice process re- 3 quired under section 4(a) and the social media 4 company does not disable access to or remove 5 the visual depiction during the 10-day period 6 beginning on the date of the notice, the person 7 may bring an action for the person and for the 8 United States Government to recover a civil 9 penalty under section 3(b) against the social 10 media company for violating section 3(a). 11 (B) ACTION IN NAME OF GOVERNMENT.— 12 An action under subparagraph (A) shall be 13 brought in the name of the Government. 14 (2) SERVICE ON GOVERNMENT; ELECTION TO 15 INTERVENE.— 16 (A) SERVICE ON GOVERNMENT.—A copy of 17 the complaint and written disclosure of substan- 18 tially all material evidence and information the 19 person possesses, including any evidence and in- 20 formation received under section 4(e), shall be 21 served on the Government pursuant to Rule 4(i) 22 of the Federal Rules of Civil Procedure. 23 (B) ELECTION TO INTERVENE.—Not later 24 than 30 days after the Government receives 25 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 8 •S 823 IS both the complaint and the material evidence 1 and information under subparagraph (A), the 2 Government shall— 3 (i) intervene and proceed with the ac- 4 tion, in which case the action shall be sole- 5 ly conducted by the Government; or 6 (ii) notify the court that the Govern- 7 ment declines to take over the action, in 8 which case the person bringing the action 9 shall have the right to conduct the action. 10 (3) NO INTERVENTION OR RELATED ACTIONS 11 BY OTHER PARTIES.—When a person brings an ac- 12 tion under this subsection, no person other than the 13 Government may intervene or bring a related action 14 based on the facts underlying the pending action. 15 (b) RIGHTS OF THE PARTIES TO QUI TAM AC- 16 TIONS.— 17 (1) GOVERNMENT PROSECUTION.—If the Gov- 18 ernment proceeds with an action under subsection 19 (a)— 20 (A) the Government— 21 (i) shall have the sole responsibility 22 for prosecuting the action, subject to para- 23 graph (2); and 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 9 •S 823 IS (ii) shall not be bound by an act of 1 the person bringing the action; and 2 (B) the person who initiated the action 3 shall not have the right to continue as a party 4 to the action. 5 (2) LIMITATION ON DISMISSAL BY GOVERN- 6 MENT.—The Government may dismiss an action 7 brought under subsection (a) if the Government de- 8 termines, based on a thorough and good faith exam- 9 ination of the material evidence and information pre- 10 sented to the Government, that the content alleged 11 to be hosted or distributed in violation of section 12 3(a) is not child sexual abuse material. 13 (3) LIMITATION ON SETTLEMENT BY GOVERN- 14 MENT.—The Government may settle an action 15 brought under subsection (a) with the defendant if 16 the court determines, after a hearing, that the pro- 17 posed settlement is fair, adequate, and reasonable 18 under all the circumstances. 19 (4) PRIVATE PROSECUTION.— 20 (A) IN GENERAL.—If the Government 21 elects not to proceed with an action under sub- 22 section (a), the person who initiated the action 23 shall have the right to conduct the action. 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 10 •S 823 IS (B) PROVISION OF CASE DOCUMENTS.—If 1 the Government so requests, the Government 2 shall be served with copies of all pleadings filed 3 in the action and shall be supplied with copies 4 of all deposition transcripts (at the Govern- 5 ment’s expense). 6 (c) AWARD TO QUI TAM PLAINTIFF.— 7 (1) GOVERNMENT PROSECUTION.—If the Gov- 8 ernment proceeds with an action brought by a per- 9 son under subsection (a)— 10 (A) the person shall receive not less than 11 25 percent of the proceeds of the action; 12 (B) any payment to the person under sub- 13 paragraph (A) shall be made from the proceeds 14 of the action; 15 (C) the person shall also receive an amount 16 for reasonable expenses that the court finds to 17 have been necessarily incurred, plus reasonable 18 attorneys’ fees and costs; and 19 (D) all expenses, fees, and costs described 20 in subparagraph (C) shall be awarded against 21 the defendant. 22 (2) PRIVATE PROSECUTION.—If the Govern- 23 ment does not proceed with an action under sub- 24 section (a)— 25 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 11 •S 823 IS (A) the person bringing the action or set- 1 tling the claim shall receive not less than 50 2 percent of the proceeds of the action or settle- 3 ment of the claim; 4 (B) any payment to the person under sub- 5 paragraph (A) shall be made from the proceeds 6 of the action; 7 (C) the person shall also receive an amount 8 for reasonable expenses that the court finds to 9 have been necessarily incurred, plus reasonable 10 attorneys’ fees and costs; and 11 (D) all expenses, fees, and costs described 12 in subparagraph (C) shall be awarded against 13 the defendant. 14 (3) UNCLEAN HANDS.— 15 (A) REDUCTION IN SHARE OF PROCEEDS 16 FOR QUI TAM PLAINTIFF.—Whether or not the 17 Government proceeds with an action under sub- 18 section (a), if the court finds that the action 19 was brought by a person who planned and initi- 20 ated the violation of section 3(a) upon which 21 the action was brought, then the court may, to 22 the extent the court considers appropriate, re- 23 duce the share of the proceeds of the action 24 that the person would otherwise receive under 25 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 12 •S 823 IS paragraph (1) or (2) of this subsection, taking 1 into account the role of the person in advancing 2 the case to litigation and any relevant cir- 3 cumstances pertaining to the violation. 4 (B) CRIMINAL CONVICTION.— 5 (i) DISMISSAL OF PARTY.—If the per- 6 son bringing an action under subsection 7 (a) is convicted of criminal conduct arising 8 from the person’s role in the violation of 9 section 3(a), the person— 10 (I) shall be dismissed from the 11 action; and 12 (II) may not receive any share of 13 the proceeds of the action. 14 (ii) RIGHT OF GOVERNMENT TO CON- 15 TINUE ACTION.—A dismissal under clause 16 (i) shall not prejudice the right of the 17 United States to continue the action, rep- 18 resented by the Department of Justice. 19 (4) AWARD OF ATTORNEYS’ FEES AND COSTS 20 TO DEFENDANT.—If the Government does not pro- 21 ceed with an action under subsection (a) and the 22 person bringing the action conducts the action, the 23 court may award to the defendant its reasonable at- 24 VerDate Sep 11 2014 23:51 Mar 23, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S823.IS S823 kjohnson on DSK79L0C42PROD with BILLS 13 •S 823 IS torneys’ fees and expenses if the defendant prevails 1 in the action. 2 (d) CERTAIN ACTIONS BARRED.—A person may not 3 bring an action under subsection (a) that is based on alle- 4 gations that are the [Text truncated for display. 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