[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 823 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 823
To hold social media companies liable for hosting or distributing child
sexual abuse material.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 15, 2023
Mr. Hawley introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To hold social media companies liable for hosting or distributing child
sexual abuse material.
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 ``Everyone can Notice-and-Takedown
Distribution of Child Sexual Abuse Material Act'' or the ``END CSAM
Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Child sexual abuse material.--The term ``child sexual
abuse material'' has the meaning given the term ``child
pornography'' in section 2256 of title 18, United States Code.
(2) Covered interactive computer service.--The term
``covered interactive computer service'' means an interactive
computer service--
(A) provided through a website, online application,
or mobile application (including a single interactive
computer service that is provided through more than one
such website or application);
(B) through which information provided by another
information content provider is distributed;
(C) that enables an individual user to create an
account for the purpose of viewing, generating, or
modifying content that can be viewed, shared, or
otherwise interacted with by other third-party users of
the interactive computer service; and
(D) that does not have peer-to-peer messaging as
its principal function.
(3) Interactive computer service.--The term ``interactive
computer service'' has the meaning given the term in section
230 of the Communications Act of 1934 (47 U.S.C. 230).
(4) Minor.--The term ``minor'' has the meaning given the
term in section 2256 of title 18, United States Code.
(5) Social media company.--The term ``social media
company''--
(A) means a company that provides, in or affecting
interstate or foreign commerce, a covered interactive
computer service; and
(B) does not include an organization described in
section 501(c) of the Internal Revenue Code of 1986 and
exempt from taxation under section 501(a) of such Code.
SEC. 3. CIVIL LIABILITY FOR SOCIAL MEDIA COMPANIES HOSTING PROHIBITED
CONTENT.
(a) Prohibition.--It shall be unlawful for a social media company
to knowingly or recklessly host or distribute child sexual abuse
material.
(b) Civil Penalty.--A social media company that violates subsection
(a) shall be liable to the United States Government for a civil penalty
of not less than $100,000 and not more than $500,000, in accordance
with this Act.
SEC. 4. NOTICE PROCESS FOR COMPANIES HOSTING PROHIBITED CONTENT.
(a) In General.--A social media company shall--
(1) provide a notice process for persons to make the
company aware that the company is hosting or distributing
content in apparent violation of section 3(a); and
(2)(A) designate an agent of the company to receive notice
under the notice process described in paragraph (1); and
(B) make available on the website, web service, or web
application of the company, in a location accessible to the
public, the name, address, phone number, and electronic mail
address of the agent designated under subparagraph (A).
(b) Notice Process Requirements.--The notice process required under
subsection (a) shall readily enable a person to provide to the agent
designated under subsection (a)(2) substantially the following:
(1) Identification of each visual depiction claimed to be
child sexual abuse material.
(2) Information reasonably sufficient to permit the agent
receiving the notice to contact the person, such as an address,
telephone number, or electronic mail address.
(3) A brief statement that--
(A) affirms that the person has a good faith belief
that each visual depiction described in paragraph (1)
is child sexual abuse material; and
(B) explains why the person has that belief.
(c) Liability Protection for Disabling Access to or Removing Visual
Depiction.--
(1) In general.--Except as provided in paragraph (2), a
social media company shall not be liable for any claim based on
the company's good faith disabling of access to, or removal of,
a visual depiction that the company believes is child sexual
abuse material.
(2) No protection for disabling access or removing more
than 10 days after receiving notice.--Paragraph (1) shall not
apply with respect to a visual depiction that a social media
company disables access to or removes if the company--
(A) was notified about the visual depiction under
the notice process required under subsection (a); and
(B) failed to disable access to or remove the
visual depiction during the 10-day period beginning on
the date of the notice described in subparagraph (A).
(d) Lack of Notice Not an Excuse for Violation.--It shall not be a
defense to an alleged violation of section 3(a) that a social media
company did not receive notice of the alleged violation under the
notice process required under subsection (a) of this section.
(e) Determination by Social Media Company That Visual Depiction Is
Not Child Sexual Abuse Material.--If a social media company receives
notice of an alleged violation of section 3(a) under the notice process
required under subsection (a) of this section and determines that the
content alleged to be hosted or distributed in violation of section
3(a) is not child sexual abuse material, the company shall, not later
than the last day of the 10-day period beginning on the date of the
notice, submit to the person who provided the notice a response that--
(1) confirms receipt of the notice;
(2) states that the company determined that the content is
not child sexual abuse material; and
(3) provides an explanation for the determination described
in paragraph (2), including any relevant evidence.
SEC. 5. QUI TAM CIVIL ACTION.
(a) Actions by Private Persons.--
(1) Right of action.--
(A) In general.--If a person provides notice to a
social media company regarding a visual depiction under
the notice process required under section 4(a) and the
social media company does not disable access to or
remove the visual depiction during the 10-day period
beginning on the date of the notice, the person may
bring an action for the person and for the United
States Government to recover a civil penalty under
section 3(b) against the social media company for
violating section 3(a).
(B) Action in name of government.--An action under
subparagraph (A) shall be brought in the name of the
Government.
(2) Service on government; election to intervene.--
(A) Service on government.--A copy of the complaint
and written disclosure of substantially all material
evidence and information the person possesses,
including any evidence and information received under
section 4(e), shall be served on the Government
pursuant to Rule 4(i) of the Federal Rules of Civil
Procedure.
(B) Election to intervene.--Not later than 30 days
after the Government receives both the complaint and
the material evidence and information under
subparagraph (A), the Government shall--
(i) intervene and proceed with the action,
in which case the action shall be solely
conducted by the Government; or
(ii) notify the court that the Government
declines to take over the action, in which case
the person bringing the action shall have the
right to conduct the action.
(3) No intervention or related actions by other parties.--
When a person brings an action under this subsection, no person
other than the Government may intervene or bring a related
action based on the facts underlying the pending action.
(b) Rights of the Parties to Qui Tam Actions.--
(1) Government prosecution.--If the Government proceeds
with an action under subsection (a)--
(A) the Government--
(i) shall have the sole responsibility for
prosecuting the action, subject to paragraph
(2); and
(ii) shall not be bound by an act of the
person bringing the action; and
(B) the person who initiated the action shall not
have the right to continue as a party to the action.
(2) Limitation on dismissal by government.--The Government
may dismiss an action brought under subsection (a) if the
Government determines, based on a thorough and good faith
examination of the material evidence and information presented
to the Government, that the content alleged to be hosted or
distributed in violation of section 3(a) is not child sexual
abuse material.
(3) Limitation on settlement by government.--The Government
may settle an action brought under subsection (a) with the
defendant if the court determines, after a hearing, that the
proposed settlement is fair, adequate, and reasonable under all
the circumstances.
(4) Private prosecution.--
(A) In general.--If the Government elects not to
proceed with an action under subsection (a), the person
who initiated the action shall have the right to
conduct the action.
(B) Provision of case documents.--If the Government
so requests, the Government shall be served with copies
of all pleadings filed in the action and shall be
supplied with copies of all deposition transcripts (at
the Government's expense).
(c) Award to Qui Tam Plaintiff.--
(1) Government prosecution.--If the Government proceeds
with an action brought by a person under subsection (a)--
(A) the person shall receive not less than 25
percent of the proceeds of the action;
(B) any payment to the person under subparagraph
(A) shall be made from the proceeds of the action;
(C) the person shall also receive an amount for
reasonable expenses that the court finds to have been
necessarily incurred, plus reasonable attorneys' fees
and costs; and
(D) all expenses, fees, and costs described in
subparagraph (C) shall be awarded against the
defendant.
(2) Private prosecution.--If the Government does not
proceed with an action under subsection (a)--
(A) the person bringing the action or settling the
claim shall receive not less than 50 percent of the
proceeds of the action or settlement of the claim;
(B) any payment to the person under subparagraph
(A) shall be made from the proceeds of the action;
(C) the person shall also receive an amount for
reasonable expenses that the court finds to have been
necessarily incurred, plus reasonable attorneys' fees
and costs; and
(D) all expenses, fees, and costs described in
subparagraph (C) shall be awarded against the
defendant.
(3) Unclean hands.--
(A) Reduction in share of proceeds for qui tam
plaintiff.--Whether or not the Government proceeds with
an action under subsection (a), if the court finds that
the action was brought by a person who planned and
initiated the violation of section 3(a) upon which the
action was brought, then the court may, to the extent
the court considers appropriate, reduce the share of
the proceeds of the action that the person would
otherwise receive under paragraph (1) or (2) of this
subsection, taking into account the role of the person
in advancing the case to litigation and any relevant
circumstances pertaining to the violation.
(B) Criminal conviction.--
(i) Dismissal of party.--If the person
bringing an action under subsection (a) is
convicted of criminal conduct arising from the
person's role in the violation of section 3(a),
the person--
(I) shall be dismissed from the
action; and
(II) may not receive any share of
the proceeds of the action.
(ii) Right of government to continue
action.--A dismissal under clause (i) shall not
prejudice the right of the United States to
continue the action, represented by the
Department of Justice.
(4) Award of attorneys' fees and costs to defendant.--If
the Government does not proceed with an action under subsection
(a) and the person bringing the action conducts the action, the
court may award to the defendant its reasonable attorneys' fees
and expenses if the defendant prevails in the action.
(d) Certain Actions Barred.--A person may not bring an action under
subsection (a) that is based on allegations that are the subject of a
civil action to which the Government is already a party.
(e) Dismissal by Court.--The court shall dismiss an action or claim
brought under subsection (a) if, as determined based on facts found by
the court, the content alleged to be hosted or distributed in violation
of section 3(a) is not child sexual abuse material.
(f) Government Not Liable for Certain Expenses.--The Government is
not liable for expenses that a person incurs in bringing an action
under subsection (a).
(g) Relation to Section 230 of the Communications Act of 1934.--
Nothing in section 230 of the Communications Act of 1934 (47 U.S.C.
230) shall be construed to impair or limit any claim in a civil action
brought under this section.
<all>