DEEP FAKES Accountability Act

I 116TH CONGRESS 1ST SESSION H. R. 3230 To combat the spread of disinformation through restrictions on deep-fake video alteration technology. IN THE HOUSE OF REPRESENTATIVES JUNE 12, 2019 Ms. CLARKE of New York 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 con- cerned 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 tation Subject to Accountability Act of 2019’’ or the 6 ‘‘DEEP FAKES Accountability Act’’. 7 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 3230 IH SEC. 2. TRANSPARENCY REQUIREMENTS. 1 (a) IN GENERAL.—Chapter 47 of title 18, United 2 States Code, is amended by adding at the end the fol- 3 lowing: 4 ‘‘§ 1041. Advanced technological false personation 5 record 6 ‘‘(a) IN GENERAL.—Except as provided in subsection 7 (j), any person who, using any means or facility of inter- 8 state or foreign commerce, produces an advanced techno- 9 logical false personation record with the intent to dis- 10 tribute such record over the internet or knowledge that 11 such record shall be so distributed, shall ensure such 12 record, complies with— 13 ‘‘(1) the watermark requirement under sub- 14 section (b); and 15 ‘‘(2)(A) in the case of an audiovisual record, 16 the disclosure requirements under subsection (c); 17 ‘‘(B) in the case of a visual record, the disclo- 18 sure requirements under subsection (d); or 19 ‘‘(C) in the case of an audio record, the disclo- 20 sure requirements under subsection (e). 21 ‘‘(b) DIGITAL WATERMARK.—Any advanced techno- 22 logical false personation record which contains a moving 23 visual element shall contain an embedded digital water- 24 mark clearly identifying such record as containing altered 25 audio or visual elements. 26 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 3230 IH ‘‘(c) AUDIOVISUAL DISCLOSURE.—Any advanced 1 technological false personation records containing both an 2 audio and a visual element shall include— 3 ‘‘(1) not less than 1 clearly articulated verbal 4 statement that identifies the record as containing al- 5 tered audio and visual elements, and a concise de- 6 scription of the extent of such alteration; and 7 ‘‘(2) an unobscured written statement in clearly 8 readable text appearing at the bottom of the image 9 throughout the duration of the visual element that 10 identifies the record as containing altered audio and 11 visual elements, and a concise description of the ex- 12 tent of such alteration. 13 ‘‘(d) VISUAL DISCLOSURE.—Any advanced techno- 14 logical false personation records exclusively containing a 15 visual element shall include an unobscured written state- 16 ment in clearly readable text appearing at the bottom of 17 the image throughout the duration of the visual element 18 that identifies the record as containing altered visual ele- 19 ments, and a concise description of the extent of such al- 20 teration. 21 ‘‘(e) AUDIO DISCLOSURE.—Any advanced techno- 22 logical false personation records exclusively containing an 23 audio element shall include, at the beginning of such 24 record, a clearly articulated verbal statement that identi- 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 3230 IH fies the record as containing altered audio elements and 1 a concise description of the extent of such alteration, and 2 in the event such record exceeds two minutes in length, 3 not less than 1 additional clearly articulated verbal state- 4 ment and additional concise description at some interval 5 during each two-minute period thereafter. 6 ‘‘(f) PENALTY.— 7 ‘‘(1) CRIMINAL PENALTY.— 8 ‘‘(A) FAILURE TO DISCLOSE.—Whoever 9 knowingly violates subsection (a)— 10 ‘‘(i) with the intent to humiliate or 11 otherwise harass the person falsely exhib- 12 ited, provided the advanced technological 13 false personation record contains sexual 14 content of a visual nature and appears to 15 feature such person engaging in such sex- 16 ual acts or in a state of nudity; 17 ‘‘(ii) with the intent to cause violence 18 or physical harm, incite armed or diplo- 19 matic conflict, or interfere in an official 20 proceeding, including an election, provided 21 the advanced technological false 22 personation record did in fact pose a cred- 23 ible threat of instigating or advancing 24 such; 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 3230 IH ‘‘(iii) in the course of criminal conduct 1 related to fraud, including securities fraud 2 and wire fraud, false personation, or iden- 3 tity theft; or 4 ‘‘(iv) by a foreign power, or an agent 5 thereof, with the intent of influencing a do- 6 mestic public policy debate, interfering in a 7 Federal, State, local, or territorial election, 8 or engaging in other acts which such power 9 may not lawfully undertake; 10 shall be fined under this title, imprisoned for 11 not more than 5 years, or both. 12 ‘‘(B) ALTERING DISCLOSURES.—Whoever 13 knowingly alters an advanced technological false 14 personation record to remove or meaningfully 15 obscure the disclosures required under sub- 16 section (a) with the intent to distribute such al- 17 tered record and— 18 ‘‘(i) with the intent to humiliate or 19 otherwise harass the person falsely exhib- 20 ited, provided the advanced technological 21 false personation record contains sexual 22 content of a visual nature and appears to 23 feature such person engaging in such sex- 24 ual acts or in a state of nudity; 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 3230 IH ‘‘(ii) with the intent to cause violence 1 or physical harm, incite armed or diplo- 2 matic conflict, or interfere in an official 3 proceeding, including an election, provided 4 the advanced technological false 5 personation record did in fact pose a cred- 6 ible threat of instigating or advancing 7 such; 8 ‘‘(iii) in the course of criminal conduct 9 related to fraud, including securities fraud 10 and wire fraud, false personation, or iden- 11 tity theft; or 12 ‘‘(iv) by a foreign power, or an agent 13 thereof, with the intent of influencing a do- 14 mestic public policy debate, interfering in a 15 Federal, State, local, or territorial election, 16 or engaging in other acts which such power 17 may not lawfully undertake; 18 shall be fined under this title, imprisoned for 19 not more than 5 years, or both. 20 ‘‘(2) CIVIL PENALTY.— 21 ‘‘(A) FAILURE TO DISCLOSE.—Any person 22 who violates subsection (a) shall be subject to 23 a civil penalty of up to $150,000 per record or 24 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 3230 IH alteration, as well as appropriate injunctive re- 1 lief. 2 ‘‘(B) ALTERING DISCLOSURES.—Any per- 3 son who alters an advanced technological false 4 personation record to remove or meaningfully 5 obscure the disclosures required under sub- 6 section (a) with the intent to distribute such al- 7 tered record shall be subject to a civil penalty 8 of up to $150,000 per record or alteration, as 9 well as appropriate injunctive relief. 10 ‘‘(g) PRIVATE RIGHT OF ACTION.— 11 ‘‘(1) IN GENERAL.—Any living individual or af- 12 filiated corporate or other entity who has been exhib- 13 ited as engaging in falsified material activity in an 14 advanced technological false personation record may 15 bring a civil action before the appropriate Federal 16 district court for damages under paragraph (2) and 17 injunctive relief under paragraph (3) against a per- 18 son who violates subsection (a) or alters an advanced 19 technological false personation record to remove or 20 meaningfully obscure the disclosures required under 21 subsection (a). 22 ‘‘(2) DAMAGES.—Damages shall consist of the 23 greater of— 24 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 3230 IH ‘‘(A) actual damages suffered by the living 1 person or the affiliated corporation or entity, 2 and any additional substantially derivative prof- 3 its of the person who violated subsection (a) or 4 altered an advanced technological false 5 personation record to remove or meaningfully 6 obscure the disclosures required under sub- 7 section (a); 8 ‘‘(B) $50,000 per record, if the living per- 9 son or affiliated corporation or entity experi- 10 enced a perceptible individual harm or faced a 11 tangible risk of experiencing such; 12 ‘‘(C) $100,000 per record, if the living per- 13 son or affiliated corporation or entity experi- 14 enced a perceptible individual harm or faced a 15 tangible risk of experiencing such and the 16 record purported to depict extreme or out- 17 rageous conduct by the living person; or 18 ‘‘(D) $150,000 per record, if the advanced 19 technological false personation record contains 20 explicit sexual content of a visual nature in- 21 tended to humiliate or otherwise harass the per- 22 son falsely depicted as engaging in such sexual 23 acts or in a state of nudity. 24 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 3230 IH ‘‘(3) INJUNCTIVE RELIEF.—Injunctive relief 1 under this subsection shall include mandated compli- 2 ance with the requirements described in subsection 3 (a). 4 ‘‘(h) PRIVACY PROTECTIONS.— 5 ‘‘(1) FEDERAL ACTIONS.—In pursuing criminal 6 or civil penalties under this Act, Federal authorities 7 shall, to the extent practicable, consult with living 8 persons exhibited as engaging in falsified material 9 activity in advanced technological false personation 10 records regarding measures such authorities can rea- 11 sonably undertake to protect their privacy and mini- 12 mize additional public viewings of such records. 13 ‘‘(2) PRIVATE ACTIONS.—Private actions 14 brought under subsection (g), upon petition of the 15 plaintiff, shall be permitted to be filed under seal if 16 such plaintiff can demonstrate a reasonable likeli- 17 hood that the creation of public records regarding 18 the advanced technological false personation record 19 would result in embarrassing or otherwise harmful 20 publicization of the falsified material activity in an 21 advanced technological false personation record. 22 ‘‘(i) RULES OF CONSTRUCTION.— 23 ‘‘(1) Nothing in this section shall be interpreted 24 as authorizing the production of an advanced tech- 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 3230 IH nological false personation record which includes dis- 1 closures if such record is otherwise prohibited by law 2 or regulation. 3 ‘‘(2) The word ‘advanced’ within the term ‘ad- 4 vanced technological false personation record’ shall 5 not be interpreted as narrowing the definition of 6 such term. 7 ‘‘(3) Nothing in this section shall be interpreted 8 as a defense against, or as preempting or limiting, 9 any Federal, State, local, or territorial laws, regula- 10 tions, or policies that prohibit, impose more strin- 11 gent standards in relation to, or provide additional 12 or alternative remedies or damages in relation to, 13 the production or distribution of advanced techno- 14 logical false personation records, deep fakes, or re- 15 lated content, including criminal and civil laws relat- 16 ing to copyright, tortious conduct, and false 17 personation. 18 ‘‘(j) EXCEPTIONS.— 19 ‘‘(1) DISCLOSURE.—The requirements under 20 subsections (c), (d), and (e) shall not apply with re- 21 spect to any advanced technological false personation 22 record— 23 ‘‘(A) containing alternative disclosures re- 24 garding the falsity of the exhibited material ac- 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 3230 IH tivities which a reasonable person would deem 1 to be more prominent than those required 2 under subsection (c), (d), or (e), as the case 3 may be; 4 ‘‘(B) during the process of producing such 5 record, provided the ultimately distributed 6 record is in compliance; 7 ‘‘(C) which primarily contains images or 8 sound recordings of actual persons, such as per- 9 forming artists, and have not been substantially 10 digitally modified; 11 ‘‘(D) created in connection with editing a 12 motion picture, television, music, or similar pro- 13 duction or creating a derivative production 14 thereof, the original content of which was cre- 15 ated prior to the enactment of this Act, in 16 which the person appearing provided consent to 17 their original appearance; 18 ‘‘(E) appearing in a context such that a 19 reasonable person would not mistake the fal- 20 sified material activity for actual material activ- 21 ity of the exhibited living person, such as par- 22 ody shows or publications, historical reenact- 23 ments, or fictionalized radio, television, or mo- 24 tion picture programming; or 25 VerDate Sep 11 2014 18:27 Jun 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3230.IH H3230 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 3230 IH ‘‘(F) produced by an officer or employee of 1 the United States, or under the authority there- 2 of, in furtherance of public safety or national 3 security. 4 ‘‘(2) WATERMARK.—The watermark require- 5 ment under subsection (b) shall not apply with re- 6 spect to any class of advanced technological false 7 personation records which the Attorney General de- 8 termines by regulation should be excluded from such 9 requirement. 10 ‘‘(k) ADVISORY OPINIONS, WAIVER, AND STAND- 11 ARDS.— 12 ‘‘(1) ADVISORY OPINIONS.—The Attorney Gen- 13 eral shall— 14 ‘‘(A) establish a pr [Text truncated for display. 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