Intimate Imagery and Privacy Protection Act of 2020

II 116TH CONGRESS 2D SESSION S. 4994 To provide civil relief for victims of the disclosure of certain intimate images, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 9, 2020 Ms. HASSAN (for herself, Mr. HAWLEY, and Mr. TILLIS) introduced the fol- lowing bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide civil relief for victims of the disclosure of certain intimate images, and for other purposes. 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 ‘‘Intimate Imagery and 4 Privacy Protection Act of 2020’’. 5 SEC. 2. CIVIL ACTION RELATING TO DISCLOSURE OF INTI- 6 MATE IMAGES. 7 (a) DEFINITIONS.—In this section: 8 (1) CONSENT.—The term ‘‘consent’’ means, 9 with respect to an individual, an affirmative, con- 10 VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4994 IS scious, and voluntary authorization made by the in- 1 dividual free from force, fraud, misrepresentation, or 2 coercion of the depicted individual. 3 (2) COMMERCIAL PORNOGRAPHIC CONTENT.— 4 The term ‘‘commercial pornographic content’’ means 5 any material that is subject to the record keeping re- 6 quirements under section 2257 of title 18, United 7 States Code. 8 (3) DEPICTED INDIVIDUAL.—The term ‘‘de- 9 picted individual’’ means an individual whose body is 10 disclosed in whole or in part in an intimate image. 11 (4) DISCLOSE.—The term ‘‘disclose’’ means to 12 transfer, publish, distribute, or make accessible an 13 intimate image. 14 (5) IDENTIFIABLE.—The term ‘‘identifiable’’ 15 means recognizable by an individual other than the 16 depicted individual from— 17 (A) the intimate image itself; or 18 (B) information or text displayed in con- 19 nection with the intimate image. 20 (6) INTIMATE IMAGE.—The term ‘‘intimate 21 image’’— 22 (A) means a photograph, film, video re- 23 cording, or digital recording that shows— 24 VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4994 IS (i) the uncovered genitals, pubic area, 1 anus, or female nipple of an individual; 2 (ii) the display or transfer of bodily 3 sexual fluids on to any part of the body of 4 an individual; 5 (iii) an individual engaging in sexually 6 explicit conduct; or 7 (iv) an individual being subjected to 8 sexually explicit conduct; and 9 (B) includes any image described in sub- 10 paragraph (A) captured or recorded while the 11 depicted individual was in a public place if— 12 (i) the depicted individual did not vol- 13 untarily display the content depicted in the 14 image; or 15 (ii) the depicted individual did not 16 consent to the sexual conduct depicted in 17 the image. 18 (7) SEXUALLY EXPLICIT CONDUCT.—The term 19 ‘‘sexually explicit conduct’’ has the meaning given 20 the term in subparagraphs (A) and (B) of section 21 2256(2) of title 18, United States Code. 22 (b) CIVIL ACTION.— 23 (1) RIGHT OF ACTION.—Except as provided in 24 paragraph (4), a depicted individual, or in the case 25 VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4994 IS of a depicted individual who is a minor, the parent 1 of the depicted individual, whose intimate image is 2 disclosed, in or through interstate or foreign com- 3 merce or using a means of interstate or foreign com- 4 merce (including the internet), without the consent 5 of the depicted individual, and such disclosure was 6 made by a person who acted knowingly without, or 7 with reckless disregard for, the consent of the de- 8 picted individual to such disclosure, may bring a civil 9 action against that person in an appropriate district 10 court of the United States for appropriate relief. 11 (2) CONSENT.—For purposes of an action 12 under paragraph (1)— 13 (A) evidence that the depicted individual 14 provided consent to the capture or recording of 15 the intimate image shall not, by itself, con- 16 stitute evidence that the depicted individual 17 provided consent to the disclosure of the inti- 18 mate image; and 19 (B) evidence that the depicted individual 20 disclosed the image to the person alleged to 21 have violated paragraph (1) shall not, by itself, 22 constitute evidence that the depicted individual 23 provided consent to the further disclosure of the 24 intimate image. 25 VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4994 IS (3) RELIEF.— 1 (A) IN GENERAL.—In a civil action filed 2 under this section— 3 (i) an individual may recover the ac- 4 tual damages sustained by the individual 5 or liquidated damages in the amount of 6 $150,000, and the cost of the action, in- 7 cluding reasonable attorney’s fees and 8 other litigation costs reasonably incurred; 9 and 10 (ii) the court may, in addition to any 11 other relief available at law, order equi- 12 table relief, including a temporary restrain- 13 ing order, a preliminary injunction, or a 14 permanent injunction ordering the defend- 15 ant to cease display or disclosure of the 16 image. 17 (B) PRESERVATION OF ANONYMITY.—In 18 ordering relief under subparagraph (A), the 19 court may grant injunctive relief maintaining 20 the confidentiality of a plaintiff using a pseu- 21 donym. 22 (4) EXCEPTIONS.—A depicted individual may 23 not bring an action for relief under this section re- 24 lating to— 25 VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4994 IS (A) an intimate image that is commercial 1 pornographic content unless— 2 (i) the content was produced by force, 3 fraud, misrepresentation, or coercion of the 4 depicted individual; and 5 (ii) the claim of force, fraud, mis- 6 representation, or coercion under clause (i) 7 is demonstrated through a preponderance 8 of evidence; 9 (B) a disclosure made in good faith— 10 (i) to a law enforcement officer or 11 agency; 12 (ii) as part of a legal proceeding; 13 (iii) as part of medical education, di- 14 agnosis, or treatment; or 15 (iv) in the reporting or investigation 16 of— 17 (I) unlawful content; or 18 (II) unsolicited or unwelcome 19 conduct; 20 (C) a matter of public concern or public in- 21 terest; or 22 (D) a disclosure reasonably intended to as- 23 sist the depicted individual. 24 Æ VerDate Sep 11 2014 03:23 Dec 16, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S4994.IS S4994 pamtmann on DSKBC07HB2PROD with BILLS