Preventing Deepfakes of Intimate Images Act

I 118TH CONGRESS 1ST SESSION H. R. 3106 To prohibit the disclosure of intimate digital depictions, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 5, 2023 Mr. MORELLE (for himself and Ms. ROSS) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To prohibit the disclosure of intimate digital depictions, 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 ‘‘Preventing Deepfakes 4 of Intimate Images Act’’. 5 SEC. 2. INTIMATE DIGITAL DEPICTIONS. 6 The Violence Against Women Act Reauthorization 7 Act of 2022 is amended by inserting after section 1309 8 the following: 9 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3106 IH ‘‘SEC. 1309A. DISCLOSURE OF INTIMATE DIGITAL DEPIC- 1 TIONS. 2 ‘‘(a) DEFINITIONS.—In this section: 3 ‘‘(1) CONSENT.—The term ‘consent’ has the 4 meaning given such term in section 1309. 5 ‘‘(2) DEPICTED INDIVIDUAL.—The term ‘de- 6 picted individual’ means an individual who, as a re- 7 sult of digitization or by means of digital manipula- 8 tion, appears in whole or in part in an intimate dig- 9 ital depiction and who is identifiable by virtue of the 10 person’s face, likeness, or other distinguishing char- 11 acteristic, such as a unique birthmark or other rec- 12 ognizable feature, or from information displayed in 13 connection with the digital depiction. 14 ‘‘(3) DIGITAL DEPICTION.—The term ‘digital 15 depiction’ means a realistic visual depiction, as that 16 term is defined in section 2256(5) of title 18, United 17 States Code, of an individual that has been created 18 or altered using digital manipulation. 19 ‘‘(4) DISCLOSE.—The term ‘disclose’ has the 20 meaning given such term in section 1309. 21 ‘‘(5) INTIMATE DIGITAL DEPICTION.—The term 22 ‘intimate digital depiction’ means a digital depiction 23 of an individual that has been created or altered 24 using digital manipulation and that depicts— 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3106 IH ‘‘(A) the uncovered genitals, pubic area, 1 anus, or postpubescent female nipple of an 2 identifiable individual; 3 ‘‘(B) the display or transfer of bodily sex- 4 ual fluids— 5 ‘‘(i) onto any part of the body of an 6 identifiable individual; or 7 ‘‘(ii) from the body of an identifiable 8 individual; or 9 ‘‘(C) an identifiable individual engaging in 10 sexually explicit conduct. 11 ‘‘(6) SEXUALLY EXPLICIT CONDUCT.—The term 12 ‘sexually explicit conduct’ has the meaning given the 13 term in subparagraphs (A) and (B) of section 14 2256(2) of title 18, United States Code. 15 ‘‘(b) RIGHT OF ACTION.— 16 ‘‘(1) IN GENERAL.—Except as provided in sub- 17 section (e), an individual who is the subject of an in- 18 timate digital depiction that is disclosed, in or af- 19 fecting interstate or foreign commerce or using any 20 means or facility of interstate or foreign commerce, 21 without the consent of the individual, where such 22 disclosure was made by a person who knows that, or 23 recklessly disregards whether, the individual has not 24 consented to such disclosure, may bring a civil ac- 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3106 IH tion against that person in an appropriate district 1 court of the United States for relief as set forth in 2 subsection (d). 3 ‘‘(2) RIGHTS ON BEHALF OF CERTAIN INDIVID- 4 UALS.—In the case of an individual who have not at- 5 tained 18 years of age or are incompetent, incapaci- 6 tated, or deceased, the legal guardian of the indi- 7 vidual or representative of the individual’s estate, 8 another family member, or any other person ap- 9 pointed as suitable by the court, may assume the in- 10 dividual’s rights under this section, but in no event 11 shall the defendant be named as such representative 12 or guardian. 13 ‘‘(c) CONSENT.—For purposes of an action under 14 subsection (b)— 15 ‘‘(1) an individual’s consent to the creation of 16 the intimate digital depiction shall not establish that 17 the person consented to its disclosure; and 18 ‘‘(2) consent shall be deemed validly given only 19 if— 20 ‘‘(A) it is set forth in an agreement written 21 in plain language signed knowingly and volun- 22 tarily by the depicted individual; and 23 ‘‘(B) it includes a general description of 24 the intimate digital depiction and, if applicable, 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3106 IH the audiovisual work into which it will be incor- 1 porated. 2 ‘‘(d) RELIEF.— 3 ‘‘(1) IN GENERAL.— 4 ‘‘(A) DAMAGES.—In a civil action filed 5 under this section, an individual may recover 6 any of the following: 7 ‘‘(i) An amount equal to the monetary 8 gain made by the defendant from the cre- 9 ation, development, or disclosure of the in- 10 timate digital depiction. 11 ‘‘(ii) Either of the following: 12 ‘‘(I) The actual damages sus- 13 tained by the individual as a result of 14 the intimate digital depiction, includ- 15 ing damages for emotional distress. 16 ‘‘(II) Liquidated damages in the 17 amount of $150,000. 18 ‘‘(iii) Punitive damages. 19 ‘‘(iv) The cost of the action, including 20 reasonable attorney’s fees and other litiga- 21 tion costs reasonably incurred. 22 ‘‘(B) EQUITABLE RELIEF.—In a civil ac- 23 tion filed under this section, a court may, in ad- 24 dition to any other relief available at law, order 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3106 IH equitable relief, including a temporary restrain- 1 ing order, a preliminary injunction, or a perma- 2 nent injunction ordering the defendant to cease 3 display or disclosure of the intimate digital de- 4 piction. 5 ‘‘(2) PRESERVATION OF ANONYMITY.—In order- 6 ing relief under this subsection, the court may grant 7 injunctive relief maintaining the confidentiality of a 8 plaintiff using a pseudonym. 9 ‘‘(e) EXCEPTIONS.—An identifiable individual may 10 not bring an action for relief under this section relating 11 to— 12 ‘‘(1) a disclosure made in good faith— 13 ‘‘(A) to or by a law enforcement officer or 14 agency in the course of reporting or inves- 15 tigating— 16 ‘‘(i) unlawful activity; or 17 ‘‘(ii) unsolicited or unwelcome con- 18 duct; or 19 ‘‘(B) as part of a legal proceeding; 20 ‘‘(2) a matter of legitimate public concern or 21 public interest, except that it shall not be considered 22 a matter of legitimate public interest or public con- 23 cern solely because the depicted individual is a pub- 24 lic figure; or 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3106 IH ‘‘(3) a disclosure reasonably intended to assist 1 the identifiable individual. 2 ‘‘(f) IN CAMERA.—A court may authorize an in cam- 3 era proceeding under this section. 4 ‘‘(g) DISCLAIMERS.—It shall not be a defense to an 5 action under this section that there is a disclaimer stating 6 that the intimate digital depiction of the depicted indi- 7 vidual was unauthorized or that the depicted individual 8 did not participate in the creation or development of the 9 material. 10 ‘‘(h) LIMITATIONS.—For purposes of this section, a 11 provider of an interactive computer service shall not be 12 held liable on account of— 13 ‘‘(1) any action voluntarily taken in good faith 14 to restrict access to or availability of intimate digital 15 depictions; or 16 ‘‘(2) any action taken to enable or make avail- 17 able to information content providers or other per- 18 sons the technical means to restrict access to inti- 19 mate digital depictions.’’. 20 SEC. 3. CRIMINAL ACTION. 21 (a) IN GENERAL.—Chapter 110 of title 18, United 22 States Code, is amended by inserting after section 2252C 23 the following: 24 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3106 IH ‘‘§ 2252D. Intimate digital depictions 1 ‘‘(a) OFFENSE.—Whoever, in or affecting interstate 2 or foreign commerce, discloses or threatens to disclose an 3 intimate digital depiction— 4 ‘‘(1) with the intent to harass, annoy, threaten, 5 alarm, or cause substantial harm to the finances or 6 reputation of the depicted individual; or 7 ‘‘(2) with actual knowledge that, or reckless dis- 8 regard for whether, such disclosure or threatened 9 disclosure will cause physical, emotional, 10 reputational, or economic harm to the depicted indi- 11 vidual, 12 shall be punished as provided under subsection (b). 13 ‘‘(b) PENALTY.—Any person who commits an offense 14 under subsection (a) shall be— 15 ‘‘(1) fined under this title, imprisoned for not 16 more than 2 years, or both; or 17 ‘‘(2) fined under this title, imprisoned for not 18 more than 10 years, or both, in the case of a viola- 19 tion in which the creation, reproduction, or distribu- 20 tion of the intimate digital depiction could be rea- 21 sonably expected to— 22 ‘‘(A) affect the conduct of any administra- 23 tive, legislative, or judicial proceeding of a Fed- 24 eral, State, local, or Tribal government agency, 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3106 IH including the administration of an election or 1 the conduct of foreign relations; or 2 ‘‘(B) facilitate violence. 3 ‘‘(c) DISCLAIMERS.—It shall not be a defense to an 4 action under this section that there is a disclaimer stating 5 that the intimate digital depiction of the depicted indi- 6 vidual was unauthorized or that the depicted individual 7 did not participate in the creation or development of the 8 material. 9 ‘‘(d) LIMITATIONS.—For purposes of this section, a 10 provider of an interactive computer service shall not be 11 held liable on account of— 12 ‘‘(1) any action voluntarily taken in good faith 13 to restrict access to or availability of intimate digital 14 depictions; or 15 ‘‘(2) any action taken to enable or make avail- 16 able to information content providers or other per- 17 sons the technical means to restrict access to inti- 18 mate digital depictions. 19 ‘‘(e) DEFINITIONS.—In this section: 20 ‘‘(1) CONSENT.—The term ‘consent’ has the 21 meaning given such term in section 1309 of the Vio- 22 lence Against Women Act Reauthorization Act of 23 2022. 24 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3106 IH ‘‘(2) DEPICTED INDIVIDUAL.—The term ‘de- 1 picted individual’ means an individual who, as a re- 2 sult of digitization or by means of digital manipula- 3 tion, appears in whole or in part in an intimate dig- 4 ital depiction and who is identifiable by virtue of the 5 person’s face, likeness, or other distinguishing char- 6 acteristic, such as a unique birthmark or other rec- 7 ognizable feature, or from information displayed in 8 connection with the digital depiction. 9 ‘‘(3) DIGITAL DEPICTION.—The term ‘digital 10 depiction’ means a realistic visual depiction, as that 11 term is defined in section 2256(5), of an individual 12 that has been created or altered using digital manip- 13 ulation. 14 ‘‘(4) DISCLOSE.—The term ‘disclose’ has the 15 meaning given such term in section 1309 of the Vio- 16 lence Against Women Act Reauthorization Act of 17 2022. 18 ‘‘(5) INTIMATE DIGITAL DEPICTION.—The term 19 ‘intimate digital depiction’ means a digital depiction 20 of an individual that has been created or altered 21 using digital manipulation and that depicts— 22 ‘‘(A) the uncovered genitals, pubic area, 23 anus, or postpubescent female nipple of an 24 identifiable individual; 25 VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3106 IH ‘‘(B) the display or transfer of bodily sex- 1 ual fluids— 2 ‘‘(i) onto any part of the body of an 3 identifiable individual; or 4 ‘‘(ii) from the body of an identifiable 5 individual; or 6 ‘‘(C) an identifiable individual engaging in 7 sexually explicit conduct. 8 ‘‘(6) SEXUALLY EXPLICIT CONDUCT.—The term 9 ‘sexually explicit conduct’ has the meaning given the 10 term in subparagraphs (A) and (B) of section 11 2256(2).’’. 12 (b) CLERICAL AMENDMENT.—The table of sections 13 for chapter 110 of title 18, United States Code is amended 14 by inserting after the item relating to section 2252C the 15 following new item: 16 ‘‘2252D. Intimate digital depictions.’’. Æ VerDate Sep 11 2014 01:02 May 19, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H3106.IH H3106 kjohnson on DSK79L0C42PROD with BILLS