Text: S.3398 — 116th Congress (2019-2020)All Information (Except Text)

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Introduced in Senate (03/05/2020)


116th CONGRESS
2d Session
S. 3398


To establish a National Commission on Online Child Sexual Exploitation Prevention, and for other purposes.


IN THE SENATE OF THE UNITED STATES

March 5, 2020

Mr. Graham (for himself, Mr. Blumenthal, Mr. Cramer, Mrs. Feinstein, Mr. Hawley, Mr. Jones, Mr. Casey, Mr. Whitehouse, Mr. Durbin, and Ms. Ernst) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To establish a National Commission on Online Child Sexual Exploitation Prevention, 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 “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020” or the “EARN IT Act of 2020”.

SEC. 2. Definitions.

In this Act:

(1) COMMISSION.—The term “Commission” means the National Commission on Online Child Sexual Exploitation Prevention.

(2) INTERACTIVE COMPUTER SERVICE.—The term “interactive computer service” has the meaning given the term in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230(f)(2)).

SEC. 3. National Commission on Online Child Sexual Exploitation Prevention.

(a) Establishment.—There is established a National Commission on Online Child Sexual Exploitation Prevention.

(b) Purpose.—The purpose of the Commission is to develop recommended best practices that providers of interactive computer services may choose to implement to prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking, and sexual abuse of children and the proliferation of online child sexual abuse material.

(c) Membership.—

(1) COMPOSITION.—

(A) IN GENERAL.—The Commission shall be composed of 19 members.

(B) AGENCY HEADS.—The following Federal officials shall serve as members of the Commission:

(i) The Attorney General or his or her representative.

(ii) The Secretary of Homeland Security or his or her representative.

(iii) The Chairman of the Federal Trade Commission or his or her representative.

(C) OTHER MEMBERS.—Of the remaining 16 members of the Commission—

(i) 4 shall be appointed by the majority leader of the Senate, of whom—

(I) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(A);

(II) 1 shall have the qualifications required under paragraph (2)(B);

(III) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(C); and

(IV) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(D);

(ii) 4 shall be appointed by the minority leader of the Senate, of whom—

(I) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(A);

(II) 1 shall have the qualifications required under paragraph (2)(B);

(III) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(C); and

(IV) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(D);

(iii) 4 shall be appointed by the Speaker of the House of Representatives, of whom—

(I) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(A);

(II) 1 shall have the qualifications required under paragraph (2)(B);

(III) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(C); and

(IV) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(D); and

(iv) 4 shall be appointed by the minority leader of the House of Representatives, of whom—

(I) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(A);

(II) 1 shall have the qualifications required under paragraph (2)(B);

(III) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(C); and

(IV) 1 shall have the qualifications required under clause (i) or (ii) of paragraph (2)(D).

(2) QUALIFICATIONS.—Of the 16 members of the Commission appointed under paragraph (1)(C)—

(A) 4 shall have current experience in investigating online child sexual exploitation crimes, of whom—

(i) 2 shall have such experience in a law enforcement capacity; and

(ii) 2 shall have such experience in a prosecutorial capacity;

(B) 4 shall be survivors of online child sexual exploitation, or have current experience in providing services for victims of online child sexual exploitation in a non-governmental capacity;

(C) (i) 2 shall have current experience in matters related to constitutional law, consumer protection, or privacy; and

(ii) 2 shall have current experience in computer science or software engineering related to matters of cryptography, data security, or artificial intelligence in a non-governmental capacity; and

(D) 4 shall be individuals who each currently work for an interactive computer service that is unrelated to each other interactive computer service represented under this subparagraph, representing diverse types of businesses and areas of professional expertise, of whom—

(i) 2 shall have current experience in addressing online child sexual exploitation and promoting child safety at an interactive computer service with not less than 30,000,000 registered monthly users in the United States; and

(ii) 2 shall have current experience in addressing online child sexual exploitation and promoting child safety at an interactive computer service with less than 10,000,000 registered monthly users in the United States.

(3) DATE.—The initial appointments of members to the Commission under paragraph (1)(C) shall be made not later than 90 days after the date of enactment of this Act.

(d) Period of appointment; vacancies.—

(1) PERIOD OF APPOINTMENT.—A member of the Commission shall be appointed for a term of 5 years.

(2) VACANCIES.—

(A) EFFECT ON COMMISSION.—Any vacancy in the Commission shall not affect the powers of the Commission.

(B) FILLING OF VACANCIES.—A vacancy in the Commission shall be filled in the same manner as the original appointment under subsection (c)(1).

(e) Initial meeting.—The Commission shall hold the first meeting of the Commission not later than 60 days after the date on which a majority of the members of the Commission have been appointed.

(f) Chairperson.—The Attorney General or his or her representative shall serve as the Chairperson of the Commission.

(g) Quorum.—A majority of the members of the Commission shall constitute a quorum, but a lesser number of members may hold a meeting.

(h) Meetings.—The Commission shall meet at the call of the Chairperson.

(i) Authority of Commission.—The Commission may, for the purpose of carrying out this section and section 4, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers appropriate.

(j) Information from Federal agencies.—

(1) IN GENERAL.—The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out this section and section 4.

(2) FURNISHING INFORMATION.—Upon request of the Chairperson of the Commission for information under paragraph (1), the head of a Federal department or agency shall furnish the information to the Commission, unless the information is subject to an active investigation or otherwise privileged or confidential.

(k) Travel expenses.—A member of the Commission shall serve without compensation, but shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular places of business of the member in the performance of services for the Commission.

(l) Duration.—Section 14 of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.

SEC. 4. Duties of the Commission.

(a) Recommended best practices.—

(1) INITIAL RECOMMENDATIONS.—

(A) IN GENERAL.—Not later than 18 months after the date on which a majority of the members of the Commission required to be appointed under section 3(c)(1)(C) have been so appointed, the Commission shall develop and submit to the Attorney General recommended best practices that providers of interactive computer services may choose to engage in to prevent, reduce, and respond to the online sexual exploitation of children, including the enticement, grooming, sex trafficking, and sexual abuse of children and the proliferation of online child sexual abuse material.

(B) REQUIREMENTS.—

(i) ALTERNATIVE BEST PRACTICES.—The best practices required to be developed and submitted under subparagraph (A) shall include alternatives that take into consideration—

(I) the size, type of product, and business model of a provider of an interactive computer service;

(II) whether an interactive computer service—

(aa) is made available to the public;

(bb) is primarily responsible for the transmission and storage of information on behalf of other interactive computer services; or

(cc) provides the capability to transmit data to and receive data from all or substantially all internet endpoints on behalf of a consumer; and

(III) whether a type of product, business model, product design, or other factors related to the provision of an interactive computer service could make a product or service susceptible to the use and facilitation of online child sexual exploitation.

(ii) SCOPE.—Notwithstanding paragraph (3), the alternatives described in clause (i) of this subparagraph may exclude certain matters required to be addressed under paragraph (3), as the Commission determines appropriate based on the nature of particular products or services or other factors relevant to the purposes of this Act.

(2) SUPPORT REQUIREMENT.—The Commission may only recommend the best practices under paragraph (1) if not fewer than 14 members of the Commission support the best practices.

(3) MATTERS ADDRESSED.—The matters addressed by the recommended best practices developed and submitted by the Commission under paragraph (1) shall include—

(A) preventing, identifying, disrupting, and reporting child sexual exploitation;

(B) coordinating with non-profit organizations and other providers of interactive computer services to preserve, remove from view, and report child sexual exploitation;

(C) retaining child sexual exploitation content and related user identification and location data;

(D) receiving and triaging reports of child sexual exploitation by users of interactive computer services, including self-reporting;

(E) implementing a standard rating and categorization system to identify the type and severity of child sexual abuse material;

(F) training and supporting content moderators who review child sexual exploitation content for the purposes of preventing and disrupting online child sexual exploitation;

(G) preparing and issuing transparency reports, including disclosures in terms of service, relating to identifying, categorizing, and reporting child sexual exploitation and efforts to prevent and disrupt online child sexual exploitation;

(H) coordinating with voluntary initiatives offered among and to providers of interactive computer services relating to identifying, categorizing, and reporting child sexual exploitation;

(I) employing age rating and age gating systems to reduce child sexual exploitation;

(J) offering parental control products that enable customers to limit the types of websites, social media platforms, and internet content that are accessible to children; and

(K) contractual and operational practices to ensure third parties, contractors, and affiliates comply with the best practices.

(4) RELEVANT CONSIDERATIONS.—In developing best practices under paragraph (1), the Commission shall consider—

(A) the cost and technical limitations of implementing the best practices;

(B) the impact on competition, product and service quality, data security, and privacy;

(C) the impact on the ability of law enforcement agencies to investigate and prosecute child sexual exploitation and rescue victims; and

(D) the current state of technology.

(5) PERIODIC UPDATES.—Not less frequently than once every 5 years, the Commission shall update and resubmit to the Attorney General recommended best practices under paragraph (1).

(6) RESUBMISSION AFTER DENIAL OR FAILURE TO APPROVE.—

(A) IN GENERAL.—If, with respect to recommended best practices submitted under paragraph (1), the best practices are denied under subsection (b)(1)(A) or a bill that contains the best practices is not enacted under the expedited procedures under subsection (c), the Commission may resubmit recommended best practices to the Attorney General until the applicable deadline.

(B) APPLICABLE DEADLINE.—

(i) INITIAL BEST PRACTICES.—For purposes of subparagraph (A), in the case of resubmission of initial recommended best practices that were submitted under paragraph (1) before any bill that contains best practices has been enacted under the expedited procedures under subsection (c), the applicable deadline is the later of—

(I) the deadline described in paragraph (1)(A) of this subsection; or

(II) the date that is 60 days after, as applicable—

(aa) the date of the denial; or

(bb) the last day on which a bill containing the best practices could have been enacted under the expedited procedures under subsection (c).

(ii) UPDATED BEST PRACTICES.—For purposes of subparagraph (A), in the case of resubmission of updated recommended best practices that were submitted under paragraph (1) in accordance with paragraph (5), the applicable deadline is the later of—

(I) the deadline described in paragraph (5); or

(II) the date that is 60 days after, as applicable—

(aa) the date of the denial; or

(bb) the last day on which a bill containing the best practices could have been enacted under the expedited procedures under subsection (c).

(b) Publication of best practices.—

(1) IN GENERAL.—Not later than 30 days after the date on which the Commission submits recommended best practices under subsection (a), including updated recommended best practices under paragraph (5) of that subsection, the Attorney General, upon agreement with the Secretary of Homeland Security and the Chairman of the Federal Trade Commission, shall—

(A) approve or deny the recommended best practices; and

(B) if approved—

(i) publish the recommended best practices on the website of the Department of Justice and in the Federal Register; and

(ii) submit the recommended best practices to Congress, including to—

(I) the Committee on the Judiciary and the Committee on Commerce, Science, and Transportation of the Senate; and

(II) the Committee on the Judiciary and the Committee on Energy and Commerce of the House of Representatives.

(2) CONSIDERATIONS.—In determining whether to approve or deny recommended best practices under paragraph (1), the Attorney General shall consider—

(A) the purpose of the Commission, as set forth in section 3(b); and

(B) the relevant considerations set forth in subsection (a)(4) of this section.

(3) WRITTEN FINDINGS.—Any denial of the recommended best practices by the Attorney General under paragraph (1) shall be accompanied by public written findings setting forth the basis for, and reasons supporting, the denial.

(c) Congressional approval.—

(1) DEFINITION.—In this subsection, the term “covered bill” means a bill that—

(A) contains only the recommended best practices that have been submitted to Congress under subsection (b), in their entirety; and

(B) is introduced under paragraph (3) of this subsection.

(2) RULES OF HOUSE OF REPRESENTATIVES AND SENATE.—This subsection is enacted by Congress—

(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a covered bill, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) in the same manner, and to the same extent, as in the case of any other rule of that House.

(3) INTRODUCTION.—

(A) IN GENERAL.—On the day on which recommended best practices are submitted to Congress under subsection (b), a covered bill containing those best practices shall be introduced—

(i) in the Senate by—

(I) the majority leader of the Senate, for himself or herself and the minority leader of the Senate; or

(II) Members of the Senate designated by the majority leader and minority leader of the Senate; and

(ii) in the House of Representatives by—

(I) the majority leader of the House of Representatives, for himself or herself and the minority leader of the House of the House of Representatives; or

(II) Members of the House of Representatives designated by the majority leader and minority leader of the House of the House of Representatives.

(B) NOT IN SESSION.—If either House is not in session on the day on which recommended best practices are submitted to Congress under subsection (b), a covered bill containing the best practices shall be introduced in that House, as provided in subparagraph (A), on the first day thereafter on which that House is in session.

(C) REFERRAL.—A covered bill introduced under this paragraph shall be referred by the Presiding Officers of the respective Houses to the appropriate committee, or, in the case of a bill containing provisions within the jurisdiction of 2 or more committees, jointly to such committees for consideration of those provisions within their respective jurisdictions.

(4) FAST TRACK CONSIDERATION IN HOUSE OF REPRESENTATIVES.—

(A) REPORTING AND DISCHARGE.—Any committee of the House of Representatives to which a covered bill is referred shall report it to the House not later than 45 calendar days after the date of introduction under paragraph (3). If a committee fails to report the covered bill within that period, the committee shall be discharged from further consideration of the covered bill and the covered bill shall be referred to the appropriate calendar.

(B) PROCEEDING TO CONSIDERATION.—After each committee authorized to consider a covered bill reports it to the House or has been discharged from its consideration, it shall be in order, not later than 60 calendar days after the date of introduction under paragraph (3), to move to proceed to consider the covered bill in the House. All points of order against the motion are waived. Such a motion shall not be in order after the House has disposed of a motion to proceed on the covered bill. The previous question shall be considered as ordered on the motion to its adoption without intervening motion. The motion shall not be debatable. A motion to reconsider the vote by which the motion is disposed of shall not be in order.

(C) CONSIDERATION.—The covered bill shall be considered as read. All points of order against the covered bill and against its consideration are waived. The previous question shall be considered as ordered on the covered bill to its passage without intervening motion except 10 hours of debate equally divided and controlled by the proponent and an opponent. A motion to reconsider the vote on passage of the covered bill shall not be in order.

(5) FAST TRACK CONSIDERATION IN SENATE.—

(A) REPORTING AND DISCHARGE.—Any committee of the Senate to which a covered bill is referred shall report it to the Senate not later than 45 calendar days after the date of introduction under paragraph (3). If a committee fails to report the covered bill within that period, the committee shall be discharged from further consideration of the covered bill and the covered bill shall be referred to the appropriate calendar.

(B) PLACEMENT ON CALENDAR.—After each committee authorized to consider a covered bill reports it to the Senate or has been discharged from its consideration, it shall be in order, not later than 60 calendar days after the date of introduction under paragraph (3) of this subsection, to place the covered bill on the calendar.

(C) FLOOR CONSIDERATION.—

(i) IN GENERAL.—Notwithstanding Rule XXII of the Standing Rules of the Senate, it is in order at any time during the period beginning on the 60th day after the date on which the covered bill was introduced under paragraph (3) and ending on the 65th day after the date on which the covered bill was introduced under that paragraph (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the covered bill, and all points of order against the covered bill (and against consideration of the covered bill) are waived. The motion to proceed is not debatable. The motion is not subject to a motion to postpone. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the covered bill is agreed to, the covered bill shall remain the unfinished business until disposed of.

(ii) DEBATE.—Debate on the covered bill, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between the majority and minority leaders or their designees. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the covered bill is not in order.

(iii) VOTE ON PASSAGE.—The vote on passage shall occur immediately following the conclusion of the debate on a covered bill, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate.

(iv) RULINGS OF THE CHAIR ON PROCEDURE.—Appeals from the decisions of the Chair relating to the application of the rules of the Senate, as the case may be, to the procedure relating to a covered bill shall be decided without debate.

(6) RULES RELATING TO SENATE AND HOUSE OF REPRESENTATIVES.—

(A) COORDINATION WITH ACTION BY OTHER HOUSE.—If, before the passage by one House of a covered bill of that House, that House receives from the other House a covered bill, then the following procedures shall apply:

(i) The covered bill of the other House shall not be referred to a committee.

(ii) With respect to a covered bill of the House receiving the bill—

(I) the procedure in that House shall be the same as if no covered bill had been received from the other House; but

(II) the vote on passage shall be on the covered bill of the other House.

(B) TREATMENT OF COVERED BILL OF OTHER HOUSE.—If one House fails to introduce or consider a covered bill under this section, the covered bill of the other House shall be entitled to expedited floor procedures under this section.

(C) TREATMENT OF COMPANION MEASURES.—If, following passage of the covered bill in the Senate, the Senate then receives the companion measure from the House of Representatives, the companion measure shall not be debatable.

(d) Certification of best practices.—Not later than 1 year after the date on which a bill that contains recommended best practices submitted to Congress under subsection (b) is enacted under the expedited procedures under subsection (c), and annually thereafter, an officer of a provider of an interactive computer service may submit a written certification to the Attorney General stating that the provider—

(1) has conducted a thorough review of the implementation and operation of the best practices; and

(2) has a reasonable basis to conclude that review does not reveal any material non-compliance with the requirements of the best practices.

(e) Publication of certified interactive computer service providers.—The Attorney General shall maintain on the website of the Department of Justice a public list of each provider of an interactive computer service for which a certification has been submitted under subsection (d).

(f) Civil investigative demands.—

(1) ISSUANCE; SERVICE; PRODUCTION OF MATERIAL; TESTIMONY.—

(A) IN GENERAL.—Whenever the Attorney General has reason to believe that an officer of a provider of an interactive computer service has filed a false certification under subsection (d), the Attorney General may issue in writing, and cause to be served upon the provider, a civil investigative demand requiring the provider to—

(i) produce any documentary material relevant to such certification for inspection and copying;

(ii) answer in writing written interrogatories with respect to such documentary material;

(iii) give oral testimony concerning such documentary material; or

(iv) furnish any combination of such material, answers, or testimony.

(B) SERVICE.—If a civil investigative demand issued under subparagraph (A) is an express demand for any product of discovery, the Attorney General shall—

(i) cause to be served, in any manner authorized under section 3733 of title 31, United States Code, a copy of the demand upon the person from whom the discovery was obtained; and

(ii) notify the person to whom the demand is issued of the date on which the copy was served.

(2) CONTENTS; RETURN DATE FOR DEMAND FOR PRODUCT OF DISCOVERY.—

(A) IN GENERAL.—Each civil investigative demand issued under paragraph (1) shall—

(i) state the nature of the Attorney General’s belief that a false certification has been filed under subsection (d);

(ii) if the demand is for production of documentary material—

(I) describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified;

(II) prescribe a return date or dates that will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying; and

(III) identify the custodian to whom the material shall be made available;

(iii) if the demand is for answers to written interrogatories—

(I) propound with definiteness and certainty the written interrogatories to be answered;

(II) prescribe a date or dates at which time answers to written interrogatories shall be submitted; and

(III) identify the custodian to whom the answers shall be submitted; and

(iv) if the demand is for the giving of oral testimony—

(I) prescribe a date, time, and place at which oral testimony shall be commenced; and

(II) identify—

(aa) an investigator who shall conduct the examination; and

(bb) the custodian to whom the transcript of the examination shall be submitted.

(B) RETURN DATE FOR PRODUCT OF DISCOVERY.—Any civil investigative demand issued under paragraph (1) that is an express demand for any product of discovery shall not be returned or returnable until 20 days after a copy of the demand has been served upon the person from whom the discovery was obtained.

(3) APPLICABILITY OF OTHER PROVISIONS.—

(A) IN GENERAL.—Subject to subparagraph (B), subsections (b) through (l) of section 3733 of title 31, United States Code, shall apply with respect to a civil investigative demand issued under paragraph (1) of this subsection in the same manner as those subsections apply to a civil investigative demand issued under subsection (a) of such section 3733.

(B) FALSE CLAIMS REFERENCES.—For purposes of subparagraph (A), a reference in section 3733 of title 31, United States Code, to—

(i) a violation of a false claims law shall be deemed to be a reference to the filing of a false certification under subsection (d) of this section;

(ii) a false claims law investigation shall be deemed to be a reference to an inquiry into whether any person is or has been engaged in filing a false certification under subsection (d) of this section; and

(iii) a false claims law investigator shall be deemed to be a reference to—

(I) any attorney or investigator employed by the Department of Justice who is charged with the duty of enforcing or carrying into effect this section; or

(II) any officer or employee of the United States acting under the direction and supervision of an attorney or investigator described in subclause (I) in connection with an inquiry into whether any person is or has been engaged in filing a false certification under subsection (d) of this section.

SEC. 5. Enforcement.

(a) Offense.—It shall be unlawful for an officer of a provider of an interactive computer service to knowingly submit a written certification under section 4(d) that contains a false statement.

(b) Criminal penalties.—Any person who violates subsection (a) shall be fined in accordance with title 18, United States Code, imprisoned for not more than 2 years, or both.

SEC. 6. Earning immunity.

(a) In general.—Section 230(e) of the Communications Act of 1934 (47 U.S.C. 230(e)) is amended by adding at the end the following:

“(6) NO EFFECT ON CHILD SEXUAL EXPLOITATION LAW.—

“(A) LIABILITY OF PROVIDERS OF INTERACTIVE COMPUTER SERVICE.—Nothing in this section (other than subsection (c)(2)(A)) shall be construed to impair or limit—

“(i) any claim in a civil action brought against a provider of an interactive computer service under section 2255 of title 18, United States Code, if the conduct underlying the claim—

“(I) constitutes a violation of section 2252 or section 2252A of that title; or

“(II) is considered a violation of section 2252 or section 2252A of that title by operation of subsection (a)(2) of such section 2255;

“(ii) any charge in a criminal prosecution brought against a provider of an interactive computer service under State law if the conduct underlying the charge would constitute a violation of section 2252 or section 2252A of title 18, United States Code; or

“(iii) any claim in a civil action brought against a provider of an interactive computer service under State law if the conduct underlying the claim—

“(I) would constitute a violation of section 2252 or section 2252A of title 18, United States Code; or

“(II) would be considered a violation of section 2252 or section 2252A of title 18, United States Code, for purposes of subsection (a)(1) of section 2255 of that title, by operation of subsection (a)(2) of such section 2255.

“(B) SAFE HARBOR.—Subparagraph (A) shall not apply to a claim in a civil action or charge in a State criminal prosecution brought against a provider of an interactive computer service if—

“(i) an officer of the provider has elected to certify to the Attorney General under section 4(d) of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 that the provider has implemented, and is in compliance with, the child sexual exploitation prevention best practices contained in a law enacted under the expedited procedures under section 4(c) of such Act and such certification was in force at the time of any alleged acts or omissions that are the subject of a claim in a civil action or charge in a State criminal prosecution brought against such provider; or

“(ii) the provider has implemented reasonable measures relating to the matters described in section 4(a)(3) of the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020, subject to the exceptions authorized under section 4(a)(1)(B)(ii) of that Act, to prevent the use of the interactive computer service for the exploitation of minors.”.

(b) Mens rea for civil suits.—Section 2255 of title 18, United States Code, is amended—

(1) by redesignating subsection (a) as paragraph (1) and adjusting the margin accordingly;

(2) by inserting before paragraph (1), as so designated, the following:

“(a) Right of action.—”; and

(3) in subsection (a), as so designated, by adding at the end the following:

“(2) CIVIL REMEDY FOR CERTAIN ACTIVITIES RELATING TO MATERIAL INVOLVING THE SEXUAL EXPLOITATION OF MINORS.—Conduct by a provider of an interactive computer service (as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230)) that would violate section 2252 or section 2252A if that section were applied by substituting ‘recklessly’ for ‘knowingly’ each place that term appears shall be considered a violation of section 2252 or section 2252A for purposes of paragraph (1) of this subsection.”.

(c) Effective date.—The amendments made by this section shall—

(1) take effect on the earlier of—

(A) the date that is 1 year after the date on which a bill that contains best practices submitted under section 4(b) is enacted under the expedited procedures under section 4(c); or

(B) the date that is 4 years after the date of enactment of this Act; and

(2) only apply to a claim in a civil action or charge in a criminal prosecution brought against a provider of an interactive computer service if the alleged acts or omissions occurred after the effective date described in paragraph (1).

SEC. 7. Use of term “child sexual abuse material”.

(a) Sense of Congress.—It is the sense of Congress that the term “child sexual abuse material” has the same legal meaning as the term “child pornography”, as that term was used in Federal statutes and case law before the date of enactment of this Act.

(b) Amendments.—

(1) TITLE 5, UNITED STATES CODE.—Chapter 65 of title 5, United States Code, is amended—

(A) in section 6502(a)(2)(B), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in section 6504(c)(2)(F), by striking “child pornography” and inserting “child sexual abuse material”.

(2) HOMELAND SECURITY ACT OF 2002.—The Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended—

(A) in section 307(b)(3)(D) (6 U.S.C. 187(b)(3)(D)), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in section 890A (6 U.S.C. 473)—

(i) in subsection (b)(2)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in subsection (e)(3)(B)(ii), by striking “child pornography” and inserting “child sexual abuse material”.

(3) IMMIGRATION AND NATIONALITY ACT.—Section 101(a)(43)(I) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(I)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(4) SMALL BUSINESS JOBS ACT OF 2010.—Section 3011(c) of the Small Business Jobs Act of 2010 (12 U.S.C. 5710(c)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(5) BROADBAND DATA IMPROVEMENT ACT.—Section 214(a)(2) of the Broadband Data Improvement Act (15 U.S.C. 6554(a)(2)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(6) CAN-SPAM ACT OF 2003.—Section 4(b)(2)(B) of the CAN-SPAM Act of 2003 (15 U.S.C. 7703(b)(2)(B)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(7) TITLE 18, UNITED STATES CODE.—Title 18, United States Code, is amended—

(A) in section 1956(c)(7)(D), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;

(B) in chapter 110—

(i) in section 2251(e), by striking “child pornography” and inserting “child sexual abuse material”;

(ii) in section 2252(b)—

(I) in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”; and

(II) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;

(iii) in section 2252A—

(I) in the section heading, by striking “child pornography” and inserting “child sexual abuse material”;

(II) in subsection (a)—

(aa) in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”;

(bb) in paragraph (2)—

(AA) in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;

(cc) in paragraph (3), by striking “child pornography” and inserting “child sexual abuse material”;

(dd) in paragraph (4)—

(AA) in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;

(ee) in paragraph (5)—

(AA) in subparagraph (A), by striking “an image of child pornography” and inserting “child sexual abuse material”; and

(BB) in subparagraph (B), by striking “an image of child pornography” and inserting “child sexual abuse material”; and

(ff) in paragraph (7)—

(AA) by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) by striking the period at the end and inserting a comma;

(III) in subsection (b)—

(aa) in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”; and

(bb) in paragraph (2), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”; and

(IV) in subsection (c)—

(aa) in paragraph (1)(A), by striking “child pornography” and inserting “child sexual abuse material”;

(bb) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and

(cc) in the undesignated matter following paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;

(V) in subsection (d)(1), by striking “child pornography” and inserting “child sexual abuse material”; and

(VI) in subsection (e), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;

(iv) in section 2256(8)—

(I) by striking “child pornography” and inserting “child sexual abuse material”; and

(II) by striking the period at the end and inserting a semicolon;

(v) in section 2257A(h)—

(I) in paragraph (1), by striking “child pornography” and inserting “child sexual abuse material”; and

(II) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;

(vi) in section 2258A—

(I) in subsection (a)(2)—

(aa) in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and

(bb) in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”;

(II) in subsection (b)—

(aa) in paragraph (4)—

(AA) in the paragraph heading, by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) by striking “child pornography” and inserting “child sexual abuse material”; and

(bb) in paragraph (5), by striking “child pornography” and inserting “child sexual abuse material”; and

(III) in subsection (g)(2)(B), by striking “child pornography” and inserting “child sexual abuse material”;

(vii) in section 2258C—

(I) in the section heading, by striking “child pornography” and inserting “child sexual abuse material”;

(II) in subsection (a)—

(aa) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and

(bb) in paragraph (3), by striking “child pornography” and inserting “child sexual abuse material”;

(III) in subsection (d), by striking “child pornography visual depiction” and inserting “child sexual abuse material visual depiction”; and

(IV) in subsection (e), by striking “child pornography visual depiction” and inserting “child sexual abuse material visual depiction”;

(viii) in section 2259—

(I) in paragraph (b)(2)—

(aa) in the paragraph heading, by striking “child pornography” and inserting “child sexual abuse material”;

(bb) in the matter preceding subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”; and

(cc) in subparagraph (A), by striking “child pornography” and inserting “child sexual abuse material”;

(II) in subsection (c)—

(aa) in paragraph (1)—

(AA) in the paragraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and

(BB) by striking “child pornography” each place the term appears and inserting “child sexual abuse material”;

(bb) in paragraph (2), in the matter preceding subparagraph (A), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”; and

(cc) in paragraph (3)—

(AA) in the paragraph heading, by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) by striking “child pornography” and inserting “child sexual abuse material”; and

(III) in subsection (d)(1)—

(aa) in subparagraph (A)—

(AA) by striking “child pornography” each place the term appears and inserting “child sexual abuse material”; and

(BB) by striking “Child Pornography” and inserting “Child Sexual Abuse Material”;

(bb) in subparagraph (B), by striking “child pornography” and inserting “child sexual abuse material”; and

(cc) in subparagraph (C)—

(AA) by striking “child pornography” and inserting “child sexual abuse material”; and

(BB) by striking “Child Pornography” and inserting “Child Sexual Abuse Material”;

(ix) in section 2259A—

(I) in the section heading, by striking “child pornography” and inserting “child sexual abuse material”;

(II) in subsection (a)—

(aa) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”; and

(bb) in paragraph (3), by striking “child pornography” and inserting “child sexual abuse material”; and

(III) in subsection (d)(2)(B), by striking “child pornography” and inserting “child sexual abuse material”; and

(x) in section 2259B—

(I) in the section heading, by striking “Child pornography” and inserting “Child sexual abuse material”;

(II) in subsection (a), by striking “Child Pornography” each place the term appears and inserting “Child Sexual Abuse Material”;

(III) in subsection (b), by striking “Child Pornography” each place the term appears and inserting “Child Sexual Abuse Material”;

(IV) in subsection (c), by striking “Child Pornography” and inserting “Child Sexual Abuse Material”; and

(V) in subsection (d), by striking “Child Pornography” and inserting “Child Sexual Abuse Material”;

(C) in chapter 117—

(i) in section 2423(f)(3), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in section 2427—

(I) in the section heading, by striking “child pornography” and inserting “child sexual abuse material”; and

(II) by striking “child pornography” and inserting “child sexual abuse material”;

(D) in section 2516—

(i) in paragraph (1)(c), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in paragraph (2), by striking “child pornography” and inserting “child sexual abuse material”;

(E) in section 3014(h)(3), by striking “child pornography” and inserting “child sexual abuse material”;

(F) in section 3509—

(i) in subsection (a)(6), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in subsection (m)—

(I) in the subsection heading, by striking “child pornography” and inserting “child sexual abuse material”;

(II) in paragraph (1), by striking “child pornography” and inserting “constitutes a child sexual abuse material”;

(III) in paragraph (2), by striking “child pornography” and inserting “constitutes a child sexual abuse material”; and

(IV) in paragraph (3), by striking “child pornography” each place the term appears and inserting “child sexual abuse material”; and

(G) in section 3632(d)(4)(D)(xlii), by striking “child pornography” and inserting “child sexual abuse material”.

(8) TARIFF ACT OF 1930.—Section 583(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 1583(a)(2)(B)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(9) ELEMENTARY AND SECONDARY EDUCATION ACT OF 1965.—Section 4121 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7131) is amended—

(A) in subsection (a)—

(i) in paragraph (1)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in paragraph (2)(A)(ii), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in subsection (e)(5)—

(i) in the paragraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and

(ii) by striking “child pornography” and inserting “child sexual abuse material”.

(10) MUSEUM AND LIBRARY SERVICES ACT.—Section 224(f) of the Museum and Library Services Act (20 U.S.C. 9134(f)) is amended—

(A) in paragraph (1)—

(i) in subparagraph (A)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in paragraph (7)(A)—

(i) in the subparagraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and

(ii) by striking “child pornography” and inserting “child sexual abuse material”.

(11) OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968.—Section 3031(b)(3) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10721(b)(3)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(12) JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT OF 1974.—Section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)) is amended—

(A) in clause (i)(I)(aa), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in clause (ii), by striking “child pornography” and inserting “child sexual abuse material”.

(13) VICTIMS OF CRIME ACT OF 1984.—Section 1402(d)(6)(A) of the Victims of Crime Act of 1984 (34 U.S.C. 20101(d)(6)(A)) is amended by striking “Child Pornography” and inserting “Child Sexual Abuse Material”.

(14) VICTIMS OF CHILD ABUSE ACT OF 1990.—The Victims of Child Abuse Act of 1990 (34 U.S.C. 20301 et seq.) is amended—

(A) in section 212(4) (34 U.S.C. 20302(4)), by striking “child pornography” and inserting “child sexual abuse material”;

(B) in section 214(b) (34 U.S.C. 20304(b))—

(i) in the subsection heading, by striking “child pornography” and inserting “child sexual abuse material”; and

(ii) by striking “child pornography” and inserting “child sexual abuse material”; and

(C) in section 226(c)(6) (34 U.S.C. 20341(c)(6)), by striking “child pornography” and inserting “child sexual abuse material”.

(15) SEX OFFENDER REGISTRATION AND NOTIFICATION ACT.—Section 111 of the Sex Offender Registration and Notification Act (34 U.S.C. 20911) is amended—

(A) in paragraph (3)(B)(iii), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in paragraph (7)(G), by striking “child pornography” and inserting “child sexual abuse material”.

(16) ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF 2006.—Section 143(b)(3) of the Adam Walsh Child Protection and Safety Act of 2006 (34 U.S.C. 20942(b)(3)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(17) PROTECT OUR CHILDREN ACT OF 2008.—Section 105(e)(1)(C) of the PROTECT Our Children Act of 2008 (34 U.S.C. 21115(e)(1)(C)) is amended by striking “child pornography” and inserting “child sexual abuse material”.

(18) SOCIAL SECURITY ACT.—Section 471(a)(20)(A)(i) of the Social Security Act (42 U.S.C. 671(a)(20)(A)(i)) is amended by striking “child pornography” and inserting “offenses involving child sexual abuse material”.

(19) PRIVACY PROTECTION ACT OF 1980.—Section 101 of the Privacy Protection Act of 1980 (42 U.S.C. 2000aa) is amended—

(A) in subsection (a)(1), by striking “child pornography” and inserting “child sexual abuse material”; and

(B) in subsection (b)(1), by striking “child pornography” and inserting “child sexual abuse material”.

(20) CHILD CARE AND DEVELOPMENT BLOCK GRANT ACT OF 1990.—Section 658H(c)(1) of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858f(c)(1)) is amended—

(A) in subparagraph (D)(iii), by striking “child pornography” and inserting “offenses relating to child sexual abuse material”; and

(B) in subparagraph (E), by striking “child pornography” and inserting “child sexual abuse material”.

(21) COMMUNICATIONS ACT OF 1934.—Title II of the Communications Act of 1934 (47 U.S.C. 201 et seq.) is amended—

(A) in section 223 (47 U.S.C. 223)—

(i) in subsection (a)(1)—

(I) in subparagraph (A), in the undesignated matter following clause (ii), by striking “child pornography” and inserting “which constitutes child sexual abuse material”; and

(II) in subparagraph (B), in the undesignated matter following clause (ii), by striking “child pornography” and inserting “which constitutes child sexual abuse material”; and

(ii) in subsection (d)(1), in the undesignated matter following subparagraph (B), by striking “child pornography” and inserting “that constitutes child sexual abuse material”; and

(B) in section 254(h) (47 U.S.C. 254(h))—

(i) in paragraph (5)—

(I) in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and

(II) in subparagraph (C)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”;

(ii) in paragraph (6)—

(I) in subparagraph (B)(i)(II), by striking “child pornography” and inserting “child sexual abuse material”; and

(II) in subparagraph (C)(i)(II) by striking “child pornography” and inserting “child sexual abuse material”; and

(iii) in paragraph (7)(F)—

(I) in the subparagraph heading, by striking “Child pornography” and inserting “Child sexual abuse material”; and

(II) by striking “child pornography” and inserting “child sexual abuse material”.

(c) Table of sections amendments.—

(1) CHAPTER 110 OF TITLE 18.—The table of sections for chapter 110 of title 18, United States Code, is amended—

(A) by striking the item relating to section 2252A and inserting the following:


“2252A. Certain activities relating to material constituting or containing child sexual abuse material.”;

(B) by striking the item relating to section 2258C and inserting the following:


“2258C. Use to combat child sexual abuse material of technical elements relating to reports made to the CyberTipline.”;

(C) by striking the item relating to section 2259A and inserting the following:


“2259A. Assessments in child sexual abuse material cases.”;

and

(D) by striking the item relating to section 2259B and inserting the following:


“2259B. Child sexual abuse materials victims reserve”.

(2) CHAPTER 117 OF TITLE 18.—The table of sections for chapter 117 of title 18, United States Code, is amended by striking the item relating to section 2427 and inserting the following:


“2427. Inclusion of offenses relating to child sexual abuse material in definition of sexual activity for which any person can be charged with a criminal offense.”.

SEC. 8. Modernizing the CyberTipline.

Chapter 110 of title 18, United States Code, is amended—

(1) in section 2258A—

(A) in subsection (a)—

(i) in paragraph (1)(B)(ii), by inserting after “facts or circumstances” the following: “, including any available facts or circumstances sufficient to identify and locate each minor and each involved individual,”; and

(ii) in paragraph (2)(A)—

(I) by inserting “1591 (if the violation involves a minor),” before “2251,”; and

(II) by striking “or 2260” and inserting “2260, or 2422(b)”;

(B) in subsection (b)—

(i) in paragraph (1)—

(I) by inserting “or location” after “identity”; and

(II) by striking “other identifying information,” and inserting “other information which may identify or locate the involved individual,”;

(ii) by redesignating paragraphs (2) through (5) as paragraphs (3) through (6), respectively;

(iii) by inserting after paragraph (1) the following:

“(2) INFORMATION ABOUT THE INVOLVED MINOR.—Information relating to the identity or location of any involved minor, which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, or any other information which may identify or locate any involved minor, including self-reported identifying information.”; and

(iv) by adding at the end the following:

“(7) FORMATTING OF REPORTS.—When in its discretion a provider voluntarily includes any content described in this subsection in a report to the CyberTipline, the provider shall use best efforts to ensure that the report conforms with the structure of the CyberTipline.”; and

(C) in subsection (d)(5)(B)—

(i) in clause (i), by striking “forwarded” and inserting “made available”; and

(ii) in clause (ii), by striking “forwarded” and inserting “made available”;

(2) in section 2258B(a)—

(A) by striking “arising from the performance” and inserting the following: “, may not be brought in any Federal or State court if the claim or charge arises from—

“(1) the performance”;

(B) in paragraph (1), as so designated, by striking “may not be brought in any Federal or State court.” and inserting a semicolon; and

(C) by adding at the end the following:

“(2) compliance with a search warrant, court order, or other legal process; or

“(3) research voluntarily undertaken by the provider or domain name registrar using any material being preserved under section 2258A(h), if the research is only for the purpose of—

“(A) improving or facilitating reporting under this section, section 2258A, or section 2258C; or

“(B) stopping the online sexual exploitation of children.”; and

(3) in section 2258C—

(A) in the section heading, by striking “the CyberTipline” and inserting “NCMEC”;

(B) in subsection (a)—

(i) in paragraph (1)—

(I) by striking “NCMEC” and inserting the following:

“(A) PROVISION TO PROVIDERS.—NCMEC”;

(II) in subparagraph (A), as so designated, by inserting “or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline report”; and

(III) by adding at the end the following:

“(B) PROVISION TO NON-PROFIT ENTITIES.—NCMEC may provide hash values or similar technical identifiers associated with visual depictions provided in a CyberTipline report or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii)) to a non-profit entity for the sole and exclusive purpose of preventing and curtailing the online sexual exploitation of children.”; and

(ii) in paragraph (2)—

(I) by inserting “(A)” after “(1)”;

(II) by inserting “or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline report”; and

(III) by adding at the end the following: “The elements authorized under paragraph (1)(B) shall be limited to hash values or similar technical identifiers associated with visual depictions provided in a CyberTipline report or submission to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii)).”; and

(C) in subsection (d), by inserting “or to the child victim identification program described in section 404(b)(1)(K)(ii) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)(ii))” after “CyberTipline”.

SEC. 9. Rule of construction.

Nothing in this Act or the amendments made by this Act shall be construed to require a provider of an interactive computer service to search, screen, or scan for instances of online child sexual exploitation.

SEC. 10. Authorization of appropriations.

There are authorized to be appropriated such sums as may be necessary to carry out this Act.

SEC. 11. Severability.

If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act, and the application of the provision or amendment to any other person or circumstance, shall not be affected.


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