SHIELD Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 3686 To provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 25, 2023 Ms. DEAN of Pennsylvania (for herself, Ms. PLASKETT, Mr. FITZPATRICK, and Ms. MACE) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual’s lack of consent to the distribution, 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 ‘‘Stopping Harmful 4 Image Exploitation and Limiting Distribution Act of 5 2023’’ or the ‘‘SHIELD Act of 2023’’. 6 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 3686 IH SEC. 2. CERTAIN ACTIVITIES RELATING TO INTIMATE VIS- 1 UAL DEPICTIONS. 2 (a) IN GENERAL.—Chapter 88 of title 18, United 3 States Code, is amended by adding at the end the fol- 4 lowing: 5 ‘‘§ 1802. Certain activities relating to intimate visual 6 depictions 7 ‘‘(a) DEFINITIONS.—In this section: 8 ‘‘(1) COMMUNICATIONS SERVICE.—The term 9 ‘communications service’ means— 10 ‘‘(A) a service provided by a person that is 11 a common carrier, as that term is defined in 12 section 3 of the Communications Act of 1934 13 (47 U.S.C. 153), insofar as the person is acting 14 as a common carrier; 15 ‘‘(B) an electronic communication service, 16 as that term is defined in section 2510; 17 ‘‘(C) an information service, as that term 18 is defined in section 3 of the Communications 19 Act of 1934 (47 U.S.C. 153); and 20 ‘‘(D) an interactive computer service, as 21 that term is defined in section 230(f) of the 22 Communications Act of 1934 (47 U.S.C. 23 230(f)). 24 ‘‘(2) INFORMATION CONTENT PROVIDER.—The 25 term ‘information content provider’ has the meaning 26 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 3686 IH given that term in section 230(f) of the Communica- 1 tions Act of 1934 (47 U.S.C. 230(f)). 2 ‘‘(3) INTIMATE VISUAL DEPICTION.—The term 3 ‘intimate visual depiction’ means any visual depic- 4 tion (as that term is defined in section 2256(5)) of 5 an individual who is recognizable by an individual 6 other than the depicted individual from the intimate 7 image who has attained 18 years of age at the time 8 the intimate visual depiction is created and— 9 ‘‘(A) who is depicted engaging in sexually 10 explicit conduct; or 11 ‘‘(B) whose genitals, anus, pubic area, or 12 female nipple are unclothed and visible. 13 ‘‘(4) VISUAL DEPICTION OF A NUDE MINOR.— 14 The term ‘visual depiction of a nude minor’ means 15 any visual depiction (as that term is defined in sec- 16 tion 2256(5)) of an individual who is recognizable by 17 an individual other than the depicted individual from 18 the intimate image itself or information or text dis- 19 played in connection with the intimate image who 20 was under 18 years of age at the time the visual de- 21 piction was created in which the actual anus, geni- 22 tals, or pubic area, or post-pubescent female nipple, 23 of the minor are unclothed, visible, and displayed in 24 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 3686 IH a manner that does not constitute sexually explicit 1 conduct. 2 ‘‘(5) SEXUALLY EXPLICIT CONDUCT.—The term 3 ‘sexually explicit conduct’ has the meaning given 4 that term in section 2256(2)(A). 5 ‘‘(b) OFFENSES.— 6 ‘‘(1) IN GENERAL.—Except as provided in sub- 7 section (d), it shall be unlawful to knowingly mail, 8 or to knowingly distribute using any means or facil- 9 ity of interstate or foreign commerce or affecting 10 interstate or foreign commerce, an intimate visual 11 depiction of an individual— 12 ‘‘(A) with knowledge of the lack of consent 13 of the individual to the distribution; 14 ‘‘(B) where what is depicted was not volun- 15 tarily exposed by the individual in a public or 16 commercial setting; and 17 ‘‘(C) where what is depicted is not a mat- 18 ter of public concern. 19 For purposes of this paragraph, the fact that the 20 subject of the depiction consented to the creation of 21 the depiction shall not establish that that person 22 consented to its distribution. 23 ‘‘(2) MINORS.—Except as provided in sub- 24 section (d), it shall be unlawful to knowingly mail, 25 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 3686 IH or to knowingly distribute using any means or facil- 1 ity of interstate or foreign commerce or affecting 2 interstate or foreign commerce, a visual depiction of 3 a nude minor with intent to abuse, humiliate, har- 4 ass, or degrade the minor, or to arouse or gratify 5 the sexual desire of any person. 6 ‘‘(c) PENALTY.— 7 ‘‘(1) IN GENERAL.—Any person who violates 8 subsection (b), or attempts or conspires to do so, 9 shall be fined under this title, imprisoned not more 10 than 5 years, or both. 11 ‘‘(2) FORFEITURE.— 12 ‘‘(A) IN GENERAL.—The court, in impos- 13 ing a sentence on any person convicted of a vio- 14 lation involving intimate visual depictions or 15 visual depictions of a nude minor under this 16 section, or convicted of a conspiracy of a viola- 17 tion involving intimate visual depictions or vis- 18 ual depictions of a nude minor under this sec- 19 tion, shall order, in addition to any other sen- 20 tence imposed and irrespective of any provision 21 of State law, that such person forfeit to the 22 United States— 23 ‘‘(i) any material distributed in viola- 24 tion of this section; 25 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 3686 IH ‘‘(ii) such person’s interest in prop- 1 erty, real or personal, constituting or de- 2 rived from any gross proceeds of such vio- 3 lation, or any property traceable to such 4 property, obtained or retained directly or 5 indirectly as a result of such violation; and 6 ‘‘(iii) any property, real or personal, 7 used or intended to be used to commit or 8 to facilitate the commission of such of- 9 fense. 10 ‘‘(B) PROCEDURES.—Section 413 of the 11 Controlled Substances Act (21 U.S.C. 853), 12 with the exception of subsections (a) and (d), 13 applies to the criminal forfeiture of property 14 pursuant to subparagraph (A). 15 ‘‘(3) RESTITUTION.—Restitution shall be avail- 16 able as provided in section 2264 of this title. 17 ‘‘(d) EXCEPTIONS.— 18 ‘‘(1) LAW ENFORCEMENT, LAWFUL REPORTING, 19 AND OTHER LEGAL PROCEEDINGS.—This section— 20 ‘‘(A) does not prohibit any lawfully author- 21 ized investigative, protective, or intelligence ac- 22 tivity of a law enforcement agency of the 23 United States, a State, or a political subdivision 24 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 3686 IH of a State, or of an intelligence agency of the 1 United States; 2 ‘‘(B) shall not apply in the case of an indi- 3 vidual acting in good faith to report unlawful or 4 unsolicited activity or in pursuance of a legal or 5 professional or other lawful obligation; and 6 ‘‘(C) shall not apply in the case of a docu- 7 ment production or filing associated with a legal 8 proceeding. 9 ‘‘(2) SERVICE PROVIDERS.—This section shall 10 not apply to any provider of a communications serv- 11 ice with regard to content provided by another infor- 12 mation content provider unless the provider of the 13 communications service intentionally solicits, or 14 knowingly and predominantly distributes, such con- 15 tent. 16 ‘‘(e) THREATS.—Any person who threatens to com- 17 mit an offense under subsection (b) shall be punished as 18 provided in subsection (c). 19 ‘‘(f) EXTRATERRITORIALITY.—There is 20 extraterritorial Federal jurisdiction over an offense under 21 this section if the defendant or the depicted individual is 22 a citizen or permanent resident of the United States. 23 VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 3686 IH ‘‘(g) RULE OF CONSTRUCTION.—Nothing in this sec- 1 tion shall be construed to limit the application of any other 2 relevant law, including section 2252 of this title.’’. 3 (b) CLERICAL AMENDMENT.—The table of sections 4 for chapter 88 of title 18, United States Code, is amended 5 by inserting after the item relating to section 1801 the 6 following: 7 ‘‘1802. Certain activities relating to intimate visual depictions.’’. (c) CONFORMING AMENDMENT.—Section 2264(a) of 8 title 18, United States Code, is amended by inserting ‘‘, 9 or under section 1802 of this title’’ before the period. 10 Æ VerDate Sep 11 2014 04:15 Jun 17, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\H3686.IH H3686 pbinns on DSKJLVW7X2PROD with $$_JOB