[Pages S988-S990]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   TOOLS TO ADDRESS KNOWN EXPLOTATIONS BY IMMOBILIZING TECHNOLOGICAL 
                 DEEPTAKES ON WEBSITES AND NETWORKS ACT

  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the 
Committee on Commerce, Science, and Transportation be discharged from 
further consideration of S. 146 and the Senate proceed to its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant executive clerk read as follows:

       A bill (S. 146) to require covered platforms to remove 
     nonconsensual intimate visual depictions, and for other 
     purposes.

  There being no objection, the committee was discharged, and the 
Senate proceeded to consider the bill.
  Ms. MURKOWSKI. I ask unanimous consent that the bill be considered 
read a third time and passed and the motion to reconsider be considered 
made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 146) was ordered to be engrossed for a third reading, 
was read the third time, and passed, as follows:

                                 S. 146

       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 ``Tools to Address Known 
     Exploitation by Immobilizing Technological Deepfakes on 
     Websites and Networks Act'' or the ``TAKE IT DOWN Act''.

     SEC. 2. CRIMINAL PROHIBITION ON INTENTIONAL DISCLOSURE OF 
                   NONCONSENSUAL INTIMATE VISUAL DEPICTIONS.

       (a) In General.--Section 223 of the Communications Act of 
     1934 (47 U.S.C. 223) is amended--
       (1) by redesignating subsection (h) as subsection (i); and
       (2) by inserting after subsection (g) the following:
       ``(h) Intentional Disclosure of Nonconsensual Intimate 
     Visual Depictions.--
       ``(1) Definitions.--In this subsection:
       ``(A) Consent.--The term `consent' means an affirmative, 
     conscious, and voluntary authorization made by an individual 
     free from force, fraud, duress, misrepresentation, or 
     coercion.
       ``(B) Digital forgery.--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.
       ``(C) Identifiable individual.--The term `identifiable 
     individual' means an individual--
       ``(i) who appears in whole or in part in an intimate visual 
     depiction; and
       ``(ii) whose face, likeness, or other distinguishing 
     characteristic (including a unique birthmark or other 
     recognizable feature) is displayed in connection with such 
     intimate visual depiction.
       ``(D) Interactive computer service.--The term `interactive 
     computer service' has the meaning given the term in section 
     230.
       ``(E) Intimate visual depiction.--The term `intimate visual 
     depiction' has the meaning given such term in section 1309 of 
     the Consolidated Appropriations Act, 2022 (15 U.S.C. 6851).
       ``(F) Minor.--The term `minor' means any individual under 
     the age of 18 years.
       ``(2) Offense involving authentic intimate visual 
     depictions.--
       ``(A) Involving adults.--Except as provided in subparagraph 
     (C), it shall be unlawful for any person, in interstate or 
     foreign commerce, to use an interactive computer service to 
     knowingly publish an intimate visual depiction of an 
     identifiable individual who is not a minor if--
       ``(i) the intimate visual depiction was obtained or created 
     under circumstances in which the person knew or reasonably 
     should have known the identifiable individual had a 
     reasonable expectation of privacy;
       ``(ii) what is depicted was not voluntarily exposed by the 
     identifiable individual in a public or commercial setting;
       ``(iii) what is depicted is not a matter of public concern; 
     and
       ``(iv) publication of the intimate visual depiction--

       ``(I) is intended to cause harm; or
       ``(II) causes harm, including psychological, financial, or 
     reputational harm, to the identifiable individual.

       ``(B) Involving minors.--Except as provided in subparagraph 
     (C), it shall be unlawful for any person, in interstate or 
     foreign commerce, to use an interactive computer service to 
     knowingly publish an intimate visual depiction of an 
     identifiable individual who is a minor with intent to--
       ``(i) abuse, humiliate, harass, or degrade the minor; or
       ``(ii) arouse or gratify the sexual desire of any person.
       ``(C) Exceptions.--Subparagraphs (A) and (B) shall not 
     apply to--
       ``(i) a lawfully authorized investigative, protective, or 
     intelligence activity of--

       ``(I) a law enforcement agency of the United States, a 
     State, or a political subdivision of a State; or
       ``(II) an intelligence agency of the United States;

       ``(ii) a disclosure made reasonably and in good faith--

[[Page S989]]

       ``(I) to a law enforcement officer or agency;
       ``(II) as part of a document production or filing 
     associated with a legal proceeding;
       ``(III) as part of medical education, diagnosis, or 
     treatment or for a legitimate medical, scientific, or 
     education purpose;
       ``(IV) in the reporting of unlawful content or unsolicited 
     or unwelcome conduct or in pursuance of a legal, 
     professional, or other lawful obligation; or
       ``(V) to seek support or help with respect to the receipt 
     of an unsolicited intimate visual depiction;

       ``(iii) a disclosure reasonably intended to assist the 
     identifiable individual;
       ``(iv) a person who possesses or publishes an intimate 
     visual depiction of himself or herself engaged in nudity or 
     sexually explicit conduct (as that term is defined in section 
     2256(2)(A) of title 18, United States Code); or
       ``(v) the publication of an intimate visual depiction that 
     constitutes--

       ``(I) child pornography (as that term is defined in section 
     2256 of title 18, United States Code); or
       ``(II) a visual depiction described in subsection (a) or 
     (b) of section 1466A of title 18, United States Code 
     (relating to obscene visual representations of the sexual 
     abuse of children).

       ``(3) Offense involving digital forgeries.--
       ``(A) Involving adults.--Except as provided in subparagraph 
     (C), it shall be unlawful for any person, in interstate or 
     foreign commerce, to use an interactive computer service to 
     knowingly publish a digital forgery of an identifiable 
     individual who is not a minor if--
       ``(i) the digital forgery was published without the consent 
     of the identifiable individual;
       ``(ii) what is depicted was not voluntarily exposed by the 
     identifiable individual in a public or commercial setting;
       ``(iii) what is depicted is not a matter of public concern; 
     and
       ``(iv) publication of the digital forgery--

       ``(I) is intended to cause harm; or
       ``(II) causes harm, including psychological, financial, or 
     reputational harm, to the identifiable individual.

       ``(B) Involving minors.--Except as provided in subparagraph 
     (C), it shall be unlawful for any person, in interstate or 
     foreign commerce, to use an interactive computer service to 
     knowingly publish a digital forgery of an identifiable 
     individual who is a minor with intent to--
       ``(i) abuse, humiliate, harass, or degrade the minor; or
       ``(ii) arouse or gratify the sexual desire of any person.
       ``(C) Exceptions.--Subparagraphs (A) and (B) shall not 
     apply to--
       ``(i) a lawfully authorized investigative, protective, or 
     intelligence activity of--

       ``(I) a law enforcement agency of the United States, a 
     State, or a political subdivision of a State; or
       ``(II) an intelligence agency of the United States;

       ``(ii) a disclosure made reasonably and in good faith--

       ``(I) to a law enforcement officer or agency;
       ``(II) as part of a document production or filing 
     associated with a legal proceeding;
       ``(III) as part of medical education, diagnosis, or 
     treatment or for a legitimate medical, scientific, or 
     education purpose;
       ``(IV) in the reporting of unlawful content or unsolicited 
     or unwelcome conduct or in pursuance of a legal, 
     professional, or other lawful obligation; or
       ``(V) to seek support or help with respect to the receipt 
     of an unsolicited intimate visual depiction;

       ``(iii) a disclosure reasonably intended to assist the 
     identifiable individual;
       ``(iv) a person who possesses or publishes a digital 
     forgery of himself or herself engaged in nudity or sexually 
     explicit conduct (as that term is defined in section 
     2256(2)(A) of title 18, United States Code); or
       ``(v) the publication of an intimate visual depiction that 
     constitutes--

       ``(I) child pornography (as that term is defined in section 
     2256 of title 18, United States Code); or
       ``(II) a visual depiction described in subsection (a) or 
     (b) of section 1466A of title 18, United States Code 
     (relating to obscene visual representations of the sexual 
     abuse of children).

       ``(4) Penalties.--
       ``(A) Offenses involving adults.--Any person who violates 
     paragraph (2)(A) or (3)(A) shall be fined under title 18, 
     United States Code, imprisoned not more than 2 years, or 
     both.
       ``(B) Offenses involving minors.--Any person who violates 
     paragraph (2)(B) or (3)(B) shall be fined under title 18, 
     United States Code, imprisoned not more than 3 years, or 
     both.
       ``(5) Rules of construction.--For purposes of paragraphs 
     (2) and (3)--
       ``(A) the fact that the identifiable individual provided 
     consent for the creation of the intimate visual depiction 
     shall not establish that the individual provided consent for 
     the publication of the intimate visual depiction; and
       ``(B) the fact that the identifiable individual disclosed 
     the intimate visual depiction to another individual shall not 
     establish that the identifiable individual provided consent 
     for the publication of the intimate visual depiction by the 
     person alleged to have violated paragraph (2) or (3), 
     respectively.
       ``(6) Threats.--
       ``(A) Threats involving authentic intimate visual 
     depictions.--Any person who intentionally threatens to commit 
     an offense under paragraph (2) for the purpose of 
     intimidation, coercion, extortion, or to create mental 
     distress shall be punished as provided in paragraph (4).
       ``(B) Threats involving digital forgeries.--
       ``(i) Threats involving adults.--Any person who 
     intentionally threatens to commit an offense under paragraph 
     (3)(A) for the purpose of intimidation, coercion, extortion, 
     or to create mental distress shall be fined under title 18, 
     United States Code, imprisoned not more than 18 months, or 
     both.
       ``(ii) Threats involving minors.--Any person who 
     intentionally threatens to commit an offense under paragraph 
     (3)(B) for the purpose of intimidation, coercion, extortion, 
     or to create mental distress shall be fined under title 18, 
     United States Code, imprisoned not more than 30 months, or 
     both.
       ``(7) Forfeiture.--
       ``(A) In general.--The court, in imposing a sentence on any 
     person convicted of a violation of paragraph (2) or (3), 
     shall order, in addition to any other sentence imposed and 
     irrespective of any provision of State law, that the person 
     forfeit to the United States--
       ``(i) any material distributed in violation of that 
     paragraph;
       ``(ii) the person's interest in property, real or personal, 
     constituting or derived from any gross proceeds of the 
     violation, or any property traceable to such property, 
     obtained or retained directly or indirectly as a result of 
     the violation; and
       ``(iii) any personal property of the person used, or 
     intended to be used, in any manner or part, to commit or to 
     facilitate the commission of the violation.
       ``(B) Procedures.--Section 413 of the Controlled Substances 
     Act (21 U.S.C. 853), with the exception of subsections (a) 
     and (d), shall apply to the criminal forfeiture of property 
     under subparagraph (A).
       ``(8) Restitution.--The court shall order restitution for 
     an offense under paragraph (2) or (3) in the same manner as 
     under section 2264 of title 18, United States Code.
       ``(9) Rule of construction.--Nothing in this subsection 
     shall be construed to limit the application of any other 
     relevant law, including section 2252 of title 18, United 
     States Code.''.
       (b) Defenses.--Section 223(e)(1) of the Communications Act 
     of 1934 (47 U.S.C. 223(e)(1)) is amended by striking ``or 
     (d)'' and inserting ``, (d), or (h)''.
       (c) Technical and Conforming Amendment.--Subsection (i) of 
     section 223 of the Communications Act of 1934 (47 U.S.C. 
     223), as so redesignated by subsection (a), is amended by 
     inserting ``Definitions.--'' before ``For purposes of this 
     section''.

     SEC. 3. NOTICE AND REMOVAL OF NONCONSENSUAL INTIMATE VISUAL 
                   DEPICTIONS.

       (a) In General.--
       (1) Notice and removal process.--
       (A) Establishment.--Not later than 1 year after the date of 
     enactment of this Act, a covered platform shall establish a 
     process whereby an identifiable individual (or an authorized 
     person acting on behalf of such individual) may--
       (i) notify the covered platform of an intimate visual 
     depiction published on the covered platform that--

       (I) includes a depiction of the identifiable individual; 
     and
       (II) was published without the consent of the identifiable 
     individual; and

       (ii) submit a request for the covered platform to remove 
     such intimate visual depiction.
       (B) Requirements.--A notification and request for removal 
     of an intimate visual depiction submitted under the process 
     established under subparagraph (A) shall include, in 
     writing--
       (i) a physical or electronic signature of the identifiable 
     individual (or an authorized person acting on behalf of such 
     individual);
       (ii) an identification of, and information reasonably 
     sufficient for the covered platform to locate, the intimate 
     visual depiction of the identifiable individual;
       (iii) a brief statement that the identifiable individual 
     has a good faith belief that any intimate visual depiction 
     identified under clause (ii) is not consensual, including any 
     relevant information for the covered platform to determine 
     the intimate visual depiction was published without the 
     consent of the identifiable individual; and
       (iv) information sufficient to enable the covered platform 
     to contact the identifiable individual (or an authorized 
     person acting on behalf of such individual).
       (2) Notice of process.--A covered platform shall provide on 
     the platform a clear and conspicuous notice, which may be 
     provided through a clear and conspicuous link to another web 
     page or disclosure, of the notice and removal process 
     established under paragraph (1)(A) that--
       (A) is easy to read and in plain language; and
       (B) provides information regarding the responsibilities of 
     the covered platform under this section, including a 
     description of how an individual can submit a notification 
     and request for removal.
       (3) Removal of nonconsensual intimate visual depictions.--
     Upon receiving a valid removal request from an identifiable 
     individual (or an authorized person acting on behalf of such 
     individual) using the process described in paragraph 
     (1)(A)(ii), a covered platform shall, as soon as possible, 
     but not

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     later than 48 hours after receiving such request--
       (A) remove the intimate visual depiction; and
       (B) make reasonable efforts to identify and remove any 
     known identical copies of such depiction.
       (4) Limitation on liability.--A covered platform shall not 
     be liable for any claim based on the covered platform's good 
     faith disabling of access to, or removal of, material claimed 
     to be a nonconsensual intimate visual depiction based on 
     facts or circumstances from which the unlawful publishing of 
     an intimate visual depiction is apparent, regardless of 
     whether the intimate visual depiction is ultimately 
     determined to be unlawful or not.
       (b) Enforcement by the Commission.--
       (1) Unfair or deceptive acts or practices.--A failure to 
     reasonably comply with the notice and takedown obligations 
     under subsection (a) shall be treated as a violation of a 
     rule defining an unfair or a deceptive act or practice under 
     section 18(a)(1)(B) of the Federal Trade Commission Act (15 
     U.S.C. 57a(a)(1)(B)).
       (2) Powers of the commission.--
       (A) In general.--Except as provided in subparagraph (D), 
     the Commission shall enforce this section in the same manner, 
     by the same means, and with the same jurisdiction, powers, 
     and duties as though all applicable terms and provisions of 
     the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were 
     incorporated into and made a part of this section.
       (B) Privileges and immunities.--Any person who violates 
     this section shall be subject to the penalties and entitled 
     to the privileges and immunities provided in the Federal 
     Trade Commission Act (15 U.S.C. 41 et seq.).
       (C) Authority preserved.--Nothing in this Act shall be 
     construed to limit the authority of the Federal Trade 
     Commission under any other provision of law.
       (D) Scope of jurisdiction.--Notwithstanding sections 4, 
     5(a)(2), or 6 of the Federal Trade Commission Act (15 U.S.C. 
     44, 45(a)(2), 46), or any jurisdictional limitation of the 
     Commission, the Commission shall also enforce this section in 
     the same manner provided in subparagraph (A), with respect to 
     organizations that are not organized to carry on business for 
     their own profit or that of their members.

     SEC. 4. DEFINITIONS.

       In this Act:
       (1) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (2) Consent; digital forgery; identifiable individual; 
     intimate visual depiction.--The terms ``consent'', ``digital 
     forgery'', ``identifiable individual'', ``intimate visual 
     depiction'', and ``minor'' have the meaning given such terms 
     in section 223(h) of the Communications Act of 1934 (47 
     U.S.C. 223), as added by section 2.
       (3) Covered platform.--
       (A) In general.--The term ``covered platform'' means a 
     website, online service, online application, or mobile 
     application--
       (i) that serves the public; and
       (ii)(I) that primarily provides a forum for user-generated 
     content, including messages, videos, images, games, and audio 
     files; or
       (II) for which it is in the regular course of trade or 
     business of the website, online service, online application, 
     or mobile application to publish, curate, host, or make 
     available content of nonconsensual intimate visual 
     depictions.
       (B) Exclusions.--The term ``covered platform'' shall not 
     include the following:
       (i) A provider of broadband internet access service (as 
     described in section 8.1(b) of title 47, Code of Federal 
     Regulations, or successor regulation).
       (ii) Electronic mail.
       (iii) Except as provided in subparagraph (A)(ii)(II), an 
     online service, application, or website--

       (I) that consists primarily of content that is not user 
     generated but is preselected by the provider of such online 
     service, application, or website; and
       (II) for which any chat, comment, or interactive 
     functionality is incidental to, directly related to, or 
     dependent on the provision of the content described in 
     subclause (I).

     SEC. 5. SEVERABILITY.

       If any provision of this Act, or an amendment made by this 
     Act, is determined to be unenforceable or invalid, the 
     remaining provisions of this Act and the amendments made by 
     this Act shall not be affected.

                          ____________________