[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2395 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 2395
To combat the spread of disinformation through restrictions on deep-
fake video alteration technology.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 8, 2021
Ms. Clarke of New York (for herself, Ms. Adams, Ms. Bass, Mr.
Butterfield, Mr. Carson, Mr. Cleaver, Mr. Cohen, Mr. DeSaulnier, Mr.
Green of Texas, Ms. Jackson Lee, Ms. Johnson of Texas, Ms. Kelly of
Illinois, Mr. Krishnamoorthi, Ms. Kuster, Mr. Lawson of Florida, Mr.
Malinowski, Mr. McGovern, Ms. Moore of Wisconsin, Ms. Norton, Ms.
Plaskett, Mr. Rush, Mr. Thompson of Mississippi, Mrs. Watson Coleman,
and Ms. Wilson of Florida) 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 concerned
_______________________________________________________________________
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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Defending Each and Every Person from
False Appearances by Keeping Exploitation Subject to Accountability Act
of 2021'' or the ``DEEP FAKES Accountability Act''.
SEC. 2. TRANSPARENCY REQUIREMENTS.
(a) In General.--Chapter 47 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1041. Advanced technological false personation record
``(a) In General.--Except as provided in subsection (j), any person
who, using any means or facility of interstate or foreign commerce,
produces an advanced technological false personation record with the
intent to distribute such record over the internet or knowledge that
such record shall be so distributed, shall ensure such record, complies
with--
``(1) the watermark requirement under subsection (b); and
``(2)(A) in the case of an audiovisual record, the
disclosure requirements under subsection (c);
``(B) in the case of a visual record, the disclosure
requirements under subsection (d); or
``(C) in the case of an audio record, the disclosure
requirements under subsection (e).
``(b) Digital Watermark.--Any advanced technological false
personation record which contains a moving visual element shall contain
an embedded digital watermark clearly identifying such record as
containing altered audio or visual elements.
``(c) Audiovisual Disclosure.--Any advanced technological false
personation records containing both an audio and a visual element shall
include--
``(1) not less than 1 clearly articulated verbal statement
that identifies the record as containing altered audio and
visual elements, and a concise description of the extent of
such alteration; and
``(2) an unobscured written statement in clearly readable
text appearing at the bottom of the image throughout the
duration of the visual element that identifies the record as
containing altered audio and visual elements, and a concise
description of the extent of such alteration.
``(d) Visual Disclosure.--Any advanced technological false
personation records exclusively containing a visual element shall
include an unobscured written statement in clearly readable text
appearing at the bottom of the image throughout the duration of the
visual element that identifies the record as containing altered visual
elements, and a concise description of the extent of such alteration.
``(e) Audio Disclosure.--Any advanced technological false
personation records exclusively containing an audio element shall
include, at the beginning of such record, a clearly articulated verbal
statement that identifies the record as containing altered audio
elements and a concise description of the extent of such alteration,
and in the event such record exceeds two minutes in length, not less
than 1 additional clearly articulated verbal statement and additional
concise description at some interval during each two-minute period
thereafter.
``(f) Penalty.--
``(1) Criminal penalty.--
``(A) Failure to disclose.--Whoever knowingly
violates subsection (a)--
``(i) with the intent to humiliate or
otherwise harass the person falsely exhibited,
provided the advanced technological false
personation record contains sexual content of a
visual nature and appears to feature such
person engaging in such sexual acts or in a
state of nudity;
``(ii) with the intent to cause violence or
physical harm, incite armed or diplomatic
conflict, or interfere in an official
proceeding, including an election, provided the
advanced technological false personation record
did in fact pose a credible threat of
instigating or advancing such;
``(iii) in the course of criminal conduct
related to fraud, including securities fraud
and wire fraud, false personation, or identity
theft; or
``(iv) by a foreign power, or an agent
thereof, with the intent of influencing a
domestic public policy debate, interfering in a
Federal, State, local, or territorial election,
or engaging in other acts which such power may
not lawfully undertake;
shall be fined under this title, imprisoned for not
more than 5 years, or both.
``(B) Altering disclosures.--Whoever knowingly
alters an advanced technological false personation
record to remove or meaningfully obscure the
disclosures required under subsection (a) with the
intent to distribute such altered record and--
``(i) with the intent to humiliate or
otherwise harass the person falsely exhibited,
provided the advanced technological false
personation record contains sexual content of a
visual nature and appears to feature such
person engaging in such sexual acts or in a
state of nudity;
``(ii) with the intent to cause violence or
physical harm, incite armed or diplomatic
conflict, or interfere in an official
proceeding, including an election, provided the
advanced technological false personation record
did in fact pose a credible threat of
instigating or advancing such;
``(iii) in the course of criminal conduct
related to fraud, including securities fraud
and wire fraud, false personation, or identity
theft; or
``(iv) by a foreign power, or an agent
thereof, with the intent of influencing a
domestic public policy debate, interfering in a
Federal, State, local, or territorial election,
or engaging in other acts which such power may
not lawfully undertake;
shall be fined under this title, imprisoned for not
more than 5 years, or both.
``(2) Civil penalty.--
``(A) Failure to disclose.--Any person who violates
subsection (a) shall be subject to a civil penalty of
up to $150,000 per record or alteration, as well as
appropriate injunctive relief.
``(B) Altering disclosures.--Any person who alters
an advanced technological false personation record to
remove or meaningfully obscure the disclosures required
under subsection (a) with the intent to distribute such
altered record shall be subject to a civil penalty of
up to $150,000 per record or alteration, as well as
appropriate injunctive relief.
``(g) Private Right of Action.--
``(1) In general.--Any living individual or affiliated
corporate or other entity who has been exhibited as engaging in
falsified material activity in an advanced technological false
personation record may bring a civil action before the
appropriate Federal district court for damages under paragraph
(2) and injunctive relief under paragraph (3) against a person
who violates subsection (a) or alters an advanced technological
false personation record to remove or meaningfully obscure the
disclosures required under subsection (a).
``(2) Damages.--Damages shall consist of the greater of--
``(A) actual damages suffered by the living person
or the affiliated corporation or entity, and any
additional substantially derivative profits of the
person who violated subsection (a) or altered an
advanced technological false personation record to
remove or meaningfully obscure the disclosures required
under subsection (a);
``(B) $50,000 per record, if the living person or
affiliated corporation or entity experienced a
perceptible individual harm or faced a tangible risk of
experiencing such;
``(C) $100,000 per record, if the living person or
affiliated corporation or entity experienced a
perceptible individual harm or faced a tangible risk of
experiencing such and the record purported to depict
extreme or outrageous conduct by the living person; or
``(D) $150,000 per record, if the advanced
technological false personation record contains
explicit sexual content of a visual nature intended to
humiliate or otherwise harass the person falsely
depicted as engaging in such sexual acts or in a state
of nudity.
``(3) Injunctive relief.--Injunctive relief under this
subsection shall include mandated compliance with the
requirements described in subsection (a).
``(h) Privacy Protections.--
``(1) Federal actions.--In pursuing criminal or civil
penalties under this Act, Federal authorities shall, to the
extent practicable, consult with living persons exhibited as
engaging in falsified material activity in advanced
technological false personation records regarding measures such
authorities can reasonably undertake to protect their privacy
and minimize additional public viewings of such records.
``(2) Private actions.--Private actions brought under
subsection (g), upon petition of the plaintiff, shall be
permitted to be filed under seal if such plaintiff can
demonstrate a reasonable likelihood that the creation of public
records regarding the advanced technological false personation
record would result in embarrassing or otherwise harmful
publicization of the falsified material activity in an advanced
technological false personation record.
``(i) Rules of Construction.--
``(1) Nothing in this section shall be interpreted as
authorizing the production of an advanced technological false
personation record which includes disclosures if such record is
otherwise prohibited by law or regulation.
``(2) The word `advanced' within the term `advanced
technological false personation record' shall not be
interpreted as narrowing the definition of such term.
``(3) Nothing in this section shall be interpreted as a
defense against, or as preempting or limiting, any Federal,
State, local, or territorial laws, regulations, or policies
that prohibit, impose more stringent standards in relation to,
or provide additional or alternative remedies or damages in
relation to, the production or distribution of advanced
technological false personation records, deep fakes, or related
content, including criminal and civil laws relating to
copyright, tortious conduct, and false personation.
``(j) Exceptions.--
``(1) Disclosure.--The requirements under subsections (c),
(d), and (e) shall not apply with respect to any advanced
technological false personation record--
``(A) containing alternative disclosures regarding
the falsity of the exhibited material activities which
a reasonable person would deem to be more prominent
than those required under subsection (c), (d), or (e),
as the case may be;
``(B) during the process of producing such record,
provided the ultimately distributed record is in
compliance;
``(C) which primarily contains images or sound
recordings of actual persons, such as performing
artists, and have not been substantially digitally
modified;
``(D) created in connection with editing a motion
picture, television, music, or similar production or
creating a derivative production thereof, the original
content of which was created prior to the enactment of
this Act, in which the person appearing provided
consent to their original appearance;
``(E) appearing in a context such that a reasonable
person would not mistake the falsified material
activity for actual material activity of the exhibited
living person, such as parody shows or publications,
historical reenactments, or fictionalized radio,
television, or motion picture programming; or
``(F) produced by an officer or employee of the
United States, or under the authority thereof, in
furtherance of public safety or national security.
``(2) Watermark.--The watermark requirement under
subsection (b) shall not apply with respect to any class of
advanced technological false personation records which the
Attorney General determines by regulation should be excluded
from such requirement.
``(k) Advisory Opinions, Waiver, and Standards.--
``(1) Advisory opinions.--The Attorney General shall--
``(A) establish a process by which any producer of
audio, visual, or audiovisual content may seek an
advisory opinion regarding the legality of their
proposed production under this section;
``(B) respond to such requests for advice not later
than 30 days after the date of submission; and
``(C) not pursue enforcement action under this
section against any producer who relied in good faith
on such an advisory opinion.
``(2) Waiver.--The Attorney General shall be authorized to
grant, and shall establish and publish procedures to govern the
issuance of, waivers from any requirements or liabilities under
this section to additional categories of advanced technological
false personation records upon petition of any producer thereof
if such producer can demonstrate compliance with this section
would impede their ability to engage in otherwise lawful
activities protected by the First Amendment of the
Constitution.
``(3) Watermark standards.--Not later than 1 year after the
date of enactment of this section, the Attorney General shall
issue rules governing the technical specifications of the
digital watermarks required under subsection (b) which stall
include, if such is determined appropriate, a requirement for
such watermarks to contain embedded metadata.
``(l) Venue.--Any action under this section may be brought, in
addition to in any district otherwise described in section 1391 of
title 28, in the district where or the person falsely depicted in the
advanced technological false personation record resides.
``(m) Extraterritoriality.--There is extraterritorial Federal
jurisdiction over an offense under this section if the defendant or the
depicted person is a citizen or permanent resident of the United
States.
``(n) Definitions.--
``(1) Advanced technological false personation record.--The
term `advanced technological false personation record' means
any deep fake, which--
``(A) a reasonable person, having considered the
visual or audio qualities of the record and the nature
of the distribution channel in which the record
appears, would believe accurately exhibits--
``(i) any material activity of a living
person which such living person did not in fact
undertake; or
``(ii) any material activity of a deceased
person which such deceased person did not in
fact undertake, and the exhibition of which is
substantially likely to either further a
criminal act or result in improper interference
in an official proceeding, public policy
debate, or election; and
``(B) was produced without the consent of such
living person, or in the case of a deceased person,
such person or the heirs thereof.
``(2) Material activity.--The term `material activity'
means any falsified speech, conduct, or depiction which causes,
or a reasonable person would recognize has a tendency to cause
perceptible individual or societal harm, including
misrepresentation, reputational damage, embarrassment,
harassment, financial losses, the incitement of violence, the
alteration of a public policy debate or election, or the
furtherance of any unlawful act.
``(3) Deep fake.--The term `deep fake' means any video
recording, motion-picture film, sound recording, electronic
image, or photograph, or any technological representation of
speech or conduct substantially derivative thereof--
``(A) which appears to authentically depict any
speech or conduct of a person who did not in fact
engage in such speech or conduct; and
``(B) the production of which was substantially
dependent upon technical means, rather than the ability
of another person to physically or verbally impersonate
such person.
``(o) Reports.--The Attorney General, in coordination with other
relevant Federal agencies, shall submit a report to Congress 5 years
after the date of enactment of this section, and 5 years thereafter,
describing trends related to prosecutions and civil penalties pursued
under this section, and recommending any updates to this section
necessitated by the emergence of new technologies.
``Sec. 1042. Deep fakes victim assistance
``(a) Coordinator for Violations Directed by Foreign Nation-
States.--The Attorney General shall designate a coordinator in each
United States Attorney's Office to receive reports from the public
regarding potential violations of section 1041 (relating to deep fake
depictions produced or distributed by any foreign nation-state, or any
agent acting on its behalf) and coordinate prosecutions for any
violation of such section.
``(b) Coordinator for False Intimate Depictions.--The Attorney
General shall designate a coordinator in each United States Attorney's
Office to receive reports from the public regarding potential
violations of section 1041 (relating to deep fake depictions of an
intimate and sexual nature) and coordinate prosecutions for any
violation of such section.
``(c) Plan and Guidance.--On the effective date of this Act, the
Attorney General shall publish a report containing--
``(1) a plan to effectuate and enforce section 1041;
``(2) a description of the efforts of the Russian
Federation and the People's Republic of China, and such other
states or groups as the Attorney General determines
appropriate, to use deep fake technology to impact elections or
public policy debates in the United States or other
democracies;
``(3) a description of the impact of intimate and sexual
deep fakes on women and marginalized communities; and
``(4) in order to increase the likelihood of such
prosecutions, official guidance to Federal prosecutors
regarding any potential legal concerns that may impede such
prosecutions absent clarification.''.
(b) Clerical Amendment.--The table of sections for chapter 47 of
title 18, United States Code, is amended by adding at the end the
following:
``1041. Advanced technological false personation record.
``1042. Deep fakes victim assistance.''.
SEC. 3. TRANSPARENCY FACILITATION.
Any manufacturer of software, who in the course of conducting such
business produces software, in or affecting interstate or foreign
commerce, which such manufacturer reasonably believes, in the context
of their intended distribution of the product, will be used to produce
deep fakes, as such term is defined in section 1041 of title 18, United
States Code, as added by this Act, shall--
(1) ensure such software has the technical capability to
insert watermarks and disclosures of the nature described in
such section into such deep fakes; and
(2) include terms of use or other analogous disclosures
with such software, which require the user of such software to
affirmatively acknowledge their general awareness of their
legal obligations under this Act.
SEC. 4. IN REM LITIGATION AGAINST FOREIGN AND UNKNOWN DEFENDANTS.
(a) In General.--A living person, or an affiliated corporate or
other entity substantially connected to such living person, exhibited
as engaging in falsified material activity in an advanced technological
false personation record, as such term is defined in section 1041 of
title 18, United States Code, as added by section 2 of this Act, and
subject to parallel exceptions to those enumerated in section 1041(j)
of such title, may file an in rem civil action against an advanced
technological false personation record, in the judicial district in
which such living person or related entity resides, if--
(1) the creator of such advanced technological false
personation record is in violation of any provision in section
1041 of title 18, United States Code, as added by section 2 of
this Act, for which a private remedy is provided; and
(2) the court finds that such living person or related
entity--
(A) is not able to obtain in personam jurisdiction
over a person who would have been a defendant in a
civil action in section 1041 of title 18, United States
Code, as added by section 2 of this Act; or
(B) through reasonable due diligence was not able
to find a person who would have been a defendant in a
civil action under paragraph (1) by--
(i) if practicable, sending a notice of the
alleged violation and intent to proceed under
this paragraph to the producer of the record;
(ii) publishing notice of the action as the
court may direct promptly after filing the
action; and
(iii) complying with such other due
diligence measures the Attorney General
promulgates through regulation.
(b) Service of Process.--The actions under subsection (a)(2)(B)(ii)
shall constitute service of process.
(c) Jurisdiction.--In an in rem action under this section, an
advanced false personation record shall be deemed to have its situs in
the judicial district in which the person falsely depicted as engaging
in material activity resides.
(d) Remedies.--The remedies in an in rem action under this
paragraph shall be limited to a court order declaring there to be a
substantial likelihood that the material activity depicted in such
advanced technological false personation record is false and lacking
the watermarks and disclosures required under section 1041 of title 18,
United States Code, as added by section 2 of this Act, and as
appropriate at the discretion of the court, the forfeiture by the
producer of such advanced technological false personation record of
profits directly derived from the production and distribution of such
content.
(e) Estoppel and Additional Remedies.--A court order under
subsection (d) may not be used for purposes of estoppel in subsequent
litigation should the living person or related entity bringing suit
file additional actions under other provisions of law. The in rem
action established under this Act shall be in addition to any other
civil action or remedy otherwise applicable and any other jurisdiction
that otherwise exists, whether in rem or in personam.
(f) Fee Waiver.--The Federal judiciary shall waive all filing fees
for actual living persons pursuing private relief under this section,
if such litigant provides a sworn certification that the primary
purpose of such filing is reputational restoration.
(g) Regulations.--The Attorney General may promulgate regulations
governing proceedings under this section, or otherwise limiting the
applicability of this section as such is determined necessary.
SEC. 5. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH AUDIOVISUAL AND
BIOMETRIC IDENTITY AUTHENTICATION.
(a) Offense.--Section 1028 of title 18, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``or a false
identification document'' and inserting ``a false
identification document, or a false audiovisual
identification record'';
(B) in paragraph (4), by striking ``or a false
identification document,'' and inserting ``a false
identification document, or a false audiovisual
identification record,''; and
(C) in paragraph (5), by striking ``or a false
identification document'' and inserting ``a false
identification document, false audiovisual
identification record'';
(2) in subsection (b)(1), by striking ``or a false
identification document'' and inserting ``a false
identification document, or a false audiovisual identification
record'';
(3) in subsection (c)(3)(A), by inserting after ``a
document'' the following: ``or a false audiovisual
identification record''; and
(4) in subsection (d)--
(A) in paragraph (1), insert after ``letters,'' the
following: ``biometric indicators'';
(B) in paragraph (7), insert after ``other unique
physical representation'' the following: ``including
facial dimensions or characteristics, or visual imagery
or content which appears to authentically depict any
speech or conduct of a person who did not in fact
engage in such speech or conduct'';
(C) in paragraph (11), strike ``and'' at the end;
(D) in paragraph (12)(B), strike the period at the
end and insert ``; and''; and
(E) by adding at the end the following:
``(13) The term `false audiovisual identification record
means' any `deep fake' which is an `advanced technological
false personation record', as such terms are defined in section
1041, used or attempted to be used by a person for the purpose
of conducting actual activities while assuming the identity of
another person without such other person's consent, that--
``(A) seeks to further any unlawful activity that
constitutes a violation of Federal law, or that
constitutes a felony under any applicable State,
territorial, or local law;
``(B) depicts obscenity or sexually explicit
conduct, considering the extent to which the record
appeals to the prurient interest, is patently
offensive, and lack serious literary, artistic,
political, or scientific value;
``(C) depicts fighting words, which by their very
utterance, inflict injury or tend to incite an
immediate breach of the peace;
``(D) constitutes a call to imminent lawless
action, and is likely, whether on its own or
collectively in connection with related records, to
incite or produce such action; and
``(E) depicts or constitutes other activities or
speech that the Attorney General determines by
regulation pose a credible threat to the national
interests of the United States, which, as of the date
of such regulation, have been determined by a Federal
court to constitute an unprotected class of speech
under the first amendment.''.
(b) Rule of Construction.--The amendments made by subsection (a)
may not be interpreted as imposing any limitations on the applicability
of section 1028 of title 18, United States Code, to any item which was
covered by such section prior to the date of enactment of this Act.
SEC. 6. FALSE PERSONATION.
(a) In General.--Chapter 43 of title 18 of the United States Code
is amended by adding at the end a new section as follows:
``Sec. 918. Deep fake false personation generally
``Section 911 through 917 of this chapter (relating to false
personation of citizens of the United States, officers, or employees of
the United States, authorities making arrests or searches, creditors of
the United States, foreign diplomats, consults, or officers, 4-H Club
members or agents, and Red Cross members or agents) shall be
interpreted to include those who produce, or substantially knowingly
contribute to the production and unlawful use of, `deep fakes' which
constitute an `advanced technological false personation record', as
such terms are defined by section 2 of the Defending Each and Every
Person from False Appearances by Keeping Exploitation Subject to
Accountability Act of 2021 and subject to parallel exceptions to those
enumerated in section 2(j) of such Act, of such classes of persons
covered by this chapter.''.
(b) Clerical Amendment.--The table of sections for chapter 43 of
title 18, United States Code, is amended by adding at the end the
following:
``918. Deep fake false personation generally.''.
SEC. 7. DETECTION OF DEEP FAKES.
(a) Establishment of Task Force.--The Secretary of Homeland
Security, in coordination with the heads of other relevant Federal
elements, shall establish a task force within the Science and
Technology Directorate, hereinafter referred to as the Deep Fakes Task
Force, to--
(1) advance efforts of the United States Government to
combat the national security implications of deep fakes;
(2) as appropriate, research and develop technologies to
detect, or otherwise counter and combat, deep fakes and other
advanced image manipulation methods and distinguish such deep
fakes or related forgeries from legitimate audiovisual
recordings or visual depictions of actual events;
(3) provide support, both administrative and scientific, to
other Federal elements researching such technologies;
(4) encourage efforts of the United States Government to
adopt such technology; and
(5) facilitate discussion and appropriate cooperation
between the United States Government and relevant private
sector technology enterprises or other nongovernmental
entities, including academic and research institutions,
regarding the identification of deep fakes or other advanced
image manipulation methods.
(b) Private Sector Collaboration.--In the event the United States
Government develops technology to reliably detect deep fakes and
distinguish such from legitimate audiovisual recordings or visual
depictions of actual events, the President shall, unless he determines
such is contrary to the national interests of the United States,
endeavor to make such technology available to appropriate United States
private sector internet platforms, including social networks.
(c) Annual Report.--Not later than one year after the date of the
enactment of this Act and annually thereafter for a period of five
years, the Secretary of Homeland Security shall submit an unclassified
report, which may however contain a classified annex, to the Committee
on Homeland Security of the House of Representatives and the Committee
on Homeland Security and Governmental Affairs of the Senate
describing--
(1) the activities of the Task Force;
(2) as appropriate, technological progress related to the
detection of deep fakes;
(3) new developments related to the national security
threat posed by deep fakes or related image manipulation
technologies, which shall include a description of any efforts
of the Russian Federation and the People's Republic of China,
and such other states or groups as the Attorney General
determines appropriate, to distribute unlawful deep fakes in
the United States or other democracies; and
(4) related efforts of the United States to combat and
counter deep fakes or related image manipulation technologies.
(d) Definition.--The term ``deep fake'' shall have the meaning
given such term in section 1041 of title 18, United States Code, as
added by section 2 of this Act.
SEC. 8. CONGRESSIONAL NOTIFICATION.
The Secretary of Homeland Security, on no less than an annual
basis, shall provide the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate with a classified written notification and, upon
request, a briefing regarding any known attempts of foreign states to
use deep fake technology to influence or otherwise interfere in an
official proceeding within the United States, including an election.
SEC. 9. EFFECTIVE DATE.
This Act shall enter into effect on the date that is one year after
the date of enactment of this Act.
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