SB441 - Relating to criminal and civil liability related to sexually explicit media and artificial intimate visual material; creating a criminal offense; increasing a criminal penalty.

      S.B. No. 441         AN ACT   relating to criminal and civil liability related to sexually   explicit media and artificial intimate visual material; creating a   criminal offense; increasing a criminal penalty.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The heading to Section 21.165, Penal Code, is   amended to read as follows:          Sec. 21.165.  UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN   SEXUALLY EXPLICIT MEDIA [ VIDEOS ].          SECTION 2.  Section 21.165(a), Penal Code, is amended by   amending Subdivision (1) and adding Subdivision (3) to read as   follows:                (1)  "Deep fake media [ video ]" means a visual depiction   [ a video, ] created or altered through [ with ] the use of software,   machine learning, artificial intelligence, or any other   computer-generated or technological means, including by adapting,   modifying, manipulating, or altering an authentic visual depiction   manually or through an automated process [ intent to deceive ], that   appears to a reasonable person to depict a real person ,   indistinguishable from an authentic visual depiction of the real   person, performing an action that did not occur in reality.                 (3)     "Visual depiction" means a photograph, motion   picture film, videotape, digital image or video, or other visual   recording.          SECTION 3.  Section 21.165, Penal Code, is amended by   amending Subsections (b) and (c) and adding Subsections (b-1),   (b-2), (c-1), (c-2), (c-3), (c-4), (c-5), and (e) to read as   follows:          (b)  A person commits an offense if, without the effective   consent of the person appearing to be depicted, the person   knowingly produces or distributes by electronic means [ a ] deep fake   media [ video ] that appears to depict the person :                 (1)     with visible computer-generated intimate parts or   with the visible intimate parts of another human being as the   intimate parts of the person; or                 (2)     engaging in sexual conduct in which the person did   not engage [ with the person's intimate parts exposed or engaged in   sexual conduct ].           (b-1)     A person commits an offense if the person   intentionally threatens to produce or distribute deep fake media   with the intent to coerce, extort, harass, or intimidate another   person.           (b-2)     Consent required by Subsection (b) is valid only if   the person appearing to be depicted knowingly and voluntarily   signed a written agreement that was drafted in plain language. The   agreement must include:                 (1)  a general description of the deep fake media; and                 (2)     if applicable, the audiovisual work into which the   deep fake media will be incorporated.          (c)  An offense under Subsection (b) [ this section ] is a   Class A misdemeanor , except that the offense is a felony of the   third degree if it is shown on the trial of the offense that:                 (1)     the actor has been previously convicted of an   offense under this section; or                 (2)     the person appearing to be depicted is younger   than 18 years of age .           (c-1)     An offense under Subsection (b-1) is a Class B   misdemeanor, except that the offense is a Class A misdemeanor if it   is shown on the trial of the offense that:                 (1)     the actor has been previously convicted of an   offense under this section; or                 (2)     the actor threatened to produce or distribute deep   fake media appearing to depict a person younger than 18 years of   age.           (c-2)     It is not a defense to prosecution under this section   that the deep fake media:                 (1)     contains a disclaimer stating that the media was   unauthorized or that the person appearing to be depicted did not   participate in the creation or development of the deep fake media;   or                 (2)     indicates, through a label or otherwise, that the   depiction is not authentic.           (c-3)     It is an affirmative defense to prosecution under this   section that the production or distribution of the deep fake media   occurs in the course of:                 (1)  lawful and common practices of law enforcement;                 (2)  reporting unlawful activity; or                 (3)     a legal proceeding, if the production or   distribution is permitted or required by law.           (c-4)     It is an affirmative defense to prosecution under   Subsection (b) that the actor:                 (1)     is an Internet service provider, cloud service   provider, cybersecurity service provider, communication service   provider, or telecommunications network that transmits data; and                 (2)     acted solely in a technical, automatic, or   intermediate nature.           (c-5)     It is an affirmative defense to prosecution under   Subsection (b) that the actor:                 (1)     is a provider or developer of a publicly   accessible artificial intelligence application or software that   was used in the creation of the deep fake media;                 (2)     included a prohibition against the creation of   deep fake media prohibited by this section in the actor's terms and   conditions or user policies that are required to be acknowledged by   a user before the user is granted access to the artificial   intelligence application or software; and                 (3)     took affirmative steps to prevent the creation of   deep fake media prohibited by this section through technological   tools, such as:                       (A)     training the artificial intelligence   application or software to identify deep fake media prohibited by   this section;                       (B)     providing effective reporting tools for deep   fake media prohibited by this section;                       (C)     filtering deep fake media prohibited by this   section created by the artificial intelligence application or   software before the media is shown to a user; and                       (D)     filtering deep fake media prohibited by this   section from the artificial intelligence application or   software     data set before the data set is used to train the   application or software.           (e)     The court shall order a defendant convicted of an   offense under this section to make restitution to the victim of the   offense for any psychological, financial, or reputational harm   incurred by the victim as a result of the offense.          SECTION 4.  The heading to Chapter 98B, Civil Practice and   Remedies Code, is amended to read as follows:   CHAPTER 98B.  UNLAWFUL PRODUCTION, SOLICITATION, DISCLOSURE , OR   PROMOTION OF INTIMATE VISUAL MATERIAL          SECTION 5.  Section 98B.001, Civil Practice and Remedies   Code, is amended by amending Subdivision (1) and adding   Subdivisions (1-a), (1-b), (3), and (4) to read as follows:                (1)   "Artificial intimate visual material" means   computer-generated intimate visual material that was produced,   adapted, or modified using an artificial intelligence application   or other computer software in which the person is recognizable as an   actual person by a person's face, likeness, voice, or other   distinguishing characteristic, such as a unique birthmark or other   recognizable feature which, when viewed by a reasonable person, is   indistinguishable from the person depicted.                 (1-a) "Consent" means affirmative, conscious, and   voluntary agreement, made by a person freely and without coercion,   fraud, or misrepresentation.                   (1-b)  "Intimate parts," "promote," "sexual conduct,"   and "visual material" have the meanings assigned by Section 21.16,   Penal Code.                 (3)     "Nudification application" means an artificial   intelligence application that is primarily designed and marketed   for the purpose of producing artificial intimate visual material.                 (4)     "Social media platform" has the meaning assigned   by Section 120.001, Business & Commerce Code.          SECTION 6.  Chapter 98B, Civil Practice and Remedies Code,   is amended by adding Sections 98B.0021, 98B.0022, 98B.008, and   98B.009 to read as follows:           Sec.   98B.0021.     LIABILITY FOR UNLAWFUL PRODUCTION,   SOLICITATION, DISCLOSURE, OR PROMOTION OF CERTAIN ARTIFICIAL   INTIMATE VISUAL MATERIAL.   A defendant is liable, as provided by   this chapter, to a person depicted in artificial intimate visual   material for damages arising from the production, solicitation,   disclosure, or promotion of the material if:                 (1)     the defendant produces, solicits, discloses, or   promotes the artificial intimate visual material without the   effective consent of the depicted person and with the intent to harm   that person;                 (2)     the production, solicitation, disclosure, or   promotion of the artificial intimate visual material causes harm to   the depicted person; and                 (3)     the production, solicitation, disclosure, or   promotion of the artificial intimate visual material reveals the   identity of the depicted person in any manner, including through   any accompanying or subsequent information or material related to   the artificial intimate visual material.           Sec.   98B.0022.     LIABILITY OF OWNERS OF INTERNET WEBSITES AND   ARTIFICIAL INTELLIGENCE APPLICATIONS AND PAYMENT PROCESSORS. (a)     A person who owns an Internet website or application, including a   social media platform, and who recklessly facilitates the   production or disclosure of artificial intimate visual material in   exchange for payment, who owns a publicly accessible nudification   application from which the material is produced, or who recklessly   processes or facilitates payment for the production or disclosure   of the material through the website or application, is liable, as   provided by this chapter, to a person depicted in the material for   damages arising from the production or disclosure of the material   if the person knows or recklessly disregards that the depicted   person did not consent to the production or disclosure of the   material.           (b)     A person who owns an Internet website or application,   including a social media platform, on which artificial intimate   visual material is disclosed is liable, as provided by this   chapter, to the person depicted in the material for damages arising   from th [Text truncated for display. 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