[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3696 Engrossed in Senate (ES)]
<DOC>
118th CONGRESS
2d Session
S. 3696
_______________________________________________________________________
AN ACT
To improve rights to relief for individuals affected by non-consensual
activities involving intimate digital forgeries, and for other
purposes.
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 ``Disrupt Explicit Forged Images and
Non-Consensual Edits Act of 2024'' or the ``DEFIANCE Act of 2024''.
SEC. 2. FINDINGS.
Congress finds that:
(1) Digital forgeries, often called deepfakes, are
synthetic images and videos that look realistic. The technology
to create digital forgeries is now ubiquitous and easy to use.
Hundreds of apps are available that can quickly generate
digital forgeries without the need for any technical expertise.
(2) Digital forgeries can be wholly fictitious but can also
manipulate images of real people to depict sexually intimate
conduct that did not occur. For example, some digital forgeries
will paste the face of an individual onto the body of a real or
fictitious individual who is nude or who is engaging in sexual
activity. Another example is a photograph of an individual that
is manipulated to digitally remove the clothing of the
individual so that the person appears to be nude.
(3) The individuals depicted in such digital forgeries are
profoundly harmed when the content is produced, disclosed, or
obtained without the consent of those individuals. These harms
are not mitigated through labels or other information that
indicates that the depiction is fake.
(4) It can be destabilizing to victims whenever those
victims are depicted in sexual digital forgeries against their
will, as the privacy of those victims is violated and the
victims lose control over their likeness and identity.
(5) Victims can feel helpless because the victims--
(A) may not be able to determine who has created
the content; and
(B) do not know how to prevent further disclosure
of the digital forgery or how to prevent more forgeries
from being made.
(6) Victims may be fearful of being in public out of
concern that individuals the victims encounter have seen the
digital forgeries. This leads to social rupture through the
loss of the ability to trust, stigmatization, and isolation.
(7) Victims of non-consensual, sexually intimate digital
forgeries may experience depression, anxiety, and suicidal
ideation. These victims may also experience the ``silencing
effect'' in which the victims withdraw from online spaces and
public discourse to avoid further abuse.
(8) Digital forgeries are often used to--
(A) harass victims, interfering with their
employment, education, reputation, or sense of safety;
or
(B) commit extortion, sexual assault, domestic
violence, and other crimes.
(9) Because of the harms caused by non-consensual, sexually
intimate digital forgeries, such digital forgeries are
considered to be a form of image-based sexual abuse.
SEC. 3. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE IMAGES.
(a) Definitions.--Section 1309 of the Consolidated Appropriations
Act, 2022 (15 U.S.C. 6851) is amended--
(1) in the heading, by inserting ``or nonconsensual
activity involving digital forgeries'' after ``intimate
images''; and
(2) in subsection (a)--
(A) in paragraph (2), by inserting ``competent,''
after ``conscious,'';
(B) by redesignating paragraphs (5) and (6) as
paragraphs (6) and (7), respectively;
(C) by redesignating paragraph (3) as paragraph
(5);
(D) by inserting after paragraph (2) the following:
``(3) Digital forgery.--
``(A) In general.--The term `digital forgery' means
any intimate visual depiction of an identifiable
individual created through 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, that, when viewed as a
whole by a reasonable person, is indistinguishable from
an authentic visual depiction of the individual.
``(B) Labels, disclosure, and context.--Any visual
depiction described in subparagraph (A) constitutes a
digital forgery for purposes of this paragraph
regardless of whether a label, information disclosed
with the visual depiction, or the context or setting in
which the visual depiction is disclosed states or
implies that the visual depiction is not authentic.'';
(E) in paragraph (5), as so redesignated--
(i) by striking ``(5) Depicted'' and
inserting ``(5) Identifiable''; and
(ii) by striking ``depicted individual''
and inserting ``identifiable individual''; and
(F) in paragraph (6)(A), as so redesignated--
(i) in clause (i), by striking ``; or'' and
inserting a semicolon;
(ii) in clause (ii)--
(I) in subclause (I), by striking
``individual;'' and inserting
``individual; or''; and
(II) by striking subclause (III);
and
(iii) by adding at the end the following:
``(iii) an identifiable individual engaging
in sexually explicit conduct; and''.
(b) Civil Action.--Section 1309(b) of the Consolidated
Appropriations Act, 2022 (15 U.S.C. 6851(b)) is amended--
(1) in paragraph (1)--
(A) by striking paragraph (A) and inserting the
following:
``(A) In general.--Except as provided in paragraph
(5)--
``(i) an identifiable individual whose
intimate visual depiction is disclosed, in or
affecting interstate or foreign commerce or
using any means or facility of interstate or
foreign commerce, without the consent of the
identifiable individual, where such disclosure
was made by a person who knows or recklessly
disregards that the identifiable individual has
not consented to such disclosure, may bring a
civil action against that person in an
appropriate district court of the United States
for relief as set forth in paragraph (3);
``(ii) an identifiable individual who is
the subject of a digital forgery may bring a
civil action in an appropriate district court
of the United States for relief as set forth in
paragraph (3) against any person that knowingly
produced or possessed the digital forgery with
intent to disclose it, or knowingly disclosed
or solicited the digital forgery, if--
``(I) the identifiable individual
did not consent to such production or
possession with intent to disclose,
disclosure, or solicitation;
``(II) the person knew or
recklessly disregarded that the
identifiable individual did not consent
to such production or possession with
intent to disclose, disclosure, or
solicitation; and
``(III) such production,
disclosure, solicitation, or possession
is in or affects interstate or foreign
commerce or uses any means or facility
of interstate or foreign commerce; and
``(iii) an identifiable individual who is
the subject of a digital forgery may bring a
civil action in an appropriate district court
of the United States for relief as set forth in
paragraph (3) against any person that knowingly
produced the digital forgery if--
``(I) the identifiable individual
did not consent to such production;
``(II) the person knew or
recklessly disregarded that the
identifiable individual--
``(aa) did not consent to
such production; and
``(bb) was harmed, or was
reasonably likely to be harmed,
by the production; and
``(III) such production is in or
affects interstate or foreign commerce
or uses any means or facility of
interstate or foreign commerce.''; and
(B) in subparagraph (B)--
(i) in the heading, by inserting
``identifiable'' before ``individuals''; and
(ii) by striking ``an individual who is
under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian
of the individual'' and inserting ``an
identifiable individual who is under 18 years
of age, incompetent, incapacitated, or
deceased, the legal guardian of the
identifiable individual'';
(2) in paragraph (2)--
(A) in subparagraph (A)--
(i) by inserting ``identifiable'' before
``individual'';
(ii) by striking ``depiction'' and
inserting ``intimate visual depiction or
digital forgery''; and
(iii) by striking ``distribution'' and
inserting ``disclosure, solicitation, or
possession''; and
(B) in subparagraph (B)--
(i) by inserting ``identifiable'' before
individual;
(ii) by inserting ``or digital forgery''
after each place the term ``depiction''
appears; and
(iii) by inserting ``, solicitation, or
possession'' after ``disclosure'';
(3) by redesignating paragraph (4) as paragraph (5);
(4) by striking paragraph (3) and inserting the following:
``(3) Relief.--
``(A) In general.--In a civil action filed under
this section, an identifiable individual may recover--
``(i) damages as provided under
subparagraph (C); and
``(ii) the cost of the action, including
reasonable attorney fees and other litigation
costs reasonably incurred.
``(B) Punitive damages and other relief.--The court
may, in addition to any other relief available at law,
award punitive damages or order equitable relief,
including a temporary restraining order, a preliminary
injunction, or a permanent injunction ordering the
defendant to delete, destroy, or cease display or
disclosure of the intimate visual depiction or digital
forgery.
``(C) Damages.--For purposes of subparagraph
(A)(i), the identifiable individual may recover--
``(i) liquidated damages in the amount of--
``(I) $150,000; or
``(II) $250,000 if the conduct at
issue in the claim was--
``(aa) committed in
relation to actual or attempted
sexual assault, stalking, or
harassment of the identifiable
individual by the defendant; or
``(bb) the direct and
proximate cause of actual or
attempted sexual assault,
stalking, or harassment of the
identifiable individual by any
person; or
``(ii) actual damages sustained by the
individual, which shall include any profits of
the defendant that are attributable to the
conduct at issue in the claim that are not
otherwise taken into account in computing the
actual damages.
``(D) Calculation of defendant's profit.--For
purposes of subparagraph (C)(ii), to establish the
defendant's profits, the identifiable individual shall
be required to present proof only of the gross revenue
of the defendant, and the defendant shall be required
to prove the deductible expenses of the defendant and
the elements of profit attributable to factors other
than the conduct at issue in the claim.
``(4) Preservation of privacy.--In a civil action filed
under this section, the court may issue an order to protect the
privacy of a plaintiff, including by--
``(A) permitting the plaintiff to use a pseudonym;
``(B) requiring the parties to redact the personal
identifying information of the plaintiff from any
public filing, or to file such documents under seal;
and
``(C) issuing a protective order for purposes of
discovery, which may include an order indicating that
any intimate visual depiction or digital forgery shall
remain in the care, custody, and control of the
court.'';
(5) in paragraph (5)(A), as so redesignated--
(A) by striking ``image'' and inserting ``visual
depiction or digital forgery''; and
(B) by striking ``depicted'' and inserting
``identifiable''; and
(6) by adding at the end the following:
``(6) Statute of limitations.--Any action commenced under
this section shall be barred unless the complaint is filed not
later than 10 years from the later of--
``(A) the date on which the identifiable individual
reasonably discovers the violation that forms the basis
for the claim; or
``(B) the date on which the identifiable individual
reaches 18 years of age.
``(7) Duplicative recovery barred.--No relief may be
ordered under paragraph (3) against a person who is subject to
a judgment under section 2255 of title 18, United States Code,
for the same conduct involving the same identifiable individual
and the same intimate visual depiction or digital forgery.''.
(c) Continued Applicability of Federal, State, and Tribal Law.--
(1) In general.--This Act shall not be construed to impair,
supersede, or limit a provision of Federal, State, or Tribal
law.
(2) No preemption.--Nothing in this Act shall prohibit a
State or Tribal government from adopting and enforcing a
provision of law governing disclosure of intimate images or
nonconsensual activity involving a digital forgery, as defined
in section 1309(a) of the Consolidated Appropriations Act, 2022
(15 U.S.C. 6851(a)), as amended by this Act, that is at least
as protective of the rights of a victim as this Act.
SEC. 4. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such a provision or amendment to any person or
circumstance, is held to be unconstitutional, the remaining provisions
of and amendments made by this Act, and the application of the
provision or amendment held to be unconstitutional to any other person
or circumstance, shall not be affected thereby.
Passed the Senate July 23, 2024.
Attest:
Secretary.
118th CONGRESS
2d Session
S. 3696
_______________________________________________________________________
AN ACT
To improve rights to relief for individuals affected by non-consensual
activities involving intimate digital forgeries, and for other
purposes.