[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 412 Reported in Senate (RS)]
<DOC>
Calendar No. 78
118th CONGRESS
1st Session
S. 412
To provide that it is unlawful to knowingly distribute private intimate
visual depictions with reckless disregard for the individual's lack of
consent to the distribution, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 14, 2023
Ms. Klobuchar (for herself, Mr. Cornyn, Mr. Lee, Mr. Blumenthal, Mr.
Graham, Mr. Cruz, and Mr. Durbin) introduced the following bill; which
was read twice and referred to the Committee on the Judiciary
May 17, 2023
Reported by Mr. Durbin, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To provide that it is unlawful to knowingly distribute private intimate
visual depictions with reckless disregard for the individual's lack of
consent to the distribution, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Stopping Harmful Image
Exploitation and Limiting Distribution Act of 2023'' or the ``SHIELD
Act of 2023''.</DELETED>
<DELETED>SEC. 2. CERTAIN ACTIVITIES RELATING TO INTIMATE VISUAL
DEPICTIONS.</DELETED>
<DELETED> (a) In General.--Chapter 88 of title 18, United States
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 1802. Certain activities relating to intimate visual
depictions</DELETED>
<DELETED> ``(a) Definitions.--In this section:</DELETED>
<DELETED> ``(1) Communications service.--The term
`communications service' means--</DELETED>
<DELETED> ``(A) a service provided by a person that
is a common carrier, as that term is defined in section
3 of the Communications Act of 1934 (47 U.S.C. 153),
insofar as the person is acting as a common
carrier;</DELETED>
<DELETED> ``(B) an electronic communication service,
as that term is defined in section 2510;</DELETED>
<DELETED> ``(C) an information service, as that term
is defined in section 3 of the Communications Act of
1934 (47 U.S.C. 153); and</DELETED>
<DELETED> ``(D) an interactive computer service, as
that term is defined in section 230(f) of the
Communications Act of 1934 (47 U.S.C.
230(f)).</DELETED>
<DELETED> ``(2) Information content provider.--The term
`information content provider' has the meaning given that term
in section 230(f) of the Communications Act of 1934 (47 U.S.C.
230(f)).</DELETED>
<DELETED> ``(3) Intimate visual depiction.--The term
`intimate visual depiction' means any visual depiction (as that
term is defined in section 2256(5)) of an individual who is
recognizable by an individual other than the depicted
individual from the intimate image itself or information or
text displayed in connection with the intimate image itself or
information or text displayed in connection with the intimate
image who has attained 18 years of age at the time the intimate
visual depiction is created and--</DELETED>
<DELETED> ``(A) who is depicted engaging in sexually
explicit conduct; or</DELETED>
<DELETED> ``(B) whose genitals, anus, pubic area, or
female nipple are unclothed and visible.</DELETED>
<DELETED> ``(4) Visual depiction of a nude minor.--The term
`visual depiction of a nude minor' means any visual depiction
(as that term is defined in section 2256(5)) of an individual
who is recognizable by an individual other than the depicted
individual from the intimate image itself or information or
text displayed in connection with the intimate image who was
under 18 years of age at the time the visual depiction was
created in which the actual anus, genitals, or pubic area, or
post-pubescent female nipple, of the minor are unclothed,
visible, and displayed in a manner that does not constitute
sexually explicit conduct.</DELETED>
<DELETED> ``(5) Sexually explicit conduct.--The term
`sexually explicit conduct' has the meaning given that term in
section 2256(2)(A).</DELETED>
<DELETED> ``(b) Offense.--</DELETED>
<DELETED> ``(1) In general.--Except as provided in
subsection (d), it shall be unlawful to knowingly mail, or to
distribute using any means or facility of interstate or foreign
commerce or affecting interstate or foreign commerce, an
intimate visual depiction of an individual--</DELETED>
<DELETED> ``(A) with knowledge of or reckless
disregard for the lack of consent of the individual to
the distribution;</DELETED>
<DELETED> ``(B) where what is depicted was not
voluntarily exposed by the individual in a public or
commercial setting; and</DELETED>
<DELETED> ``(C) where what is depicted is not a
matter of public concern.</DELETED>
<DELETED>For purposes of this paragraph, the fact that the
subject of the depiction consented to the creation of the
depiction shall not establish that that person consented to its
distribution.</DELETED>
<DELETED> ``(2) Minors.--Except as provided in subsection
(d), it shall be unlawful to knowingly mail, or to distribute
using any means or facility of interstate or foreign commerce
or affecting interstate or foreign commerce, a visual depiction
of a nude minor with intent to abuse, humiliate, harass, or
degrade the minor, or to arouse or gratify the sexual desire of
any person.</DELETED>
<DELETED> ``(c) Penalty.--</DELETED>
<DELETED> ``(1) In general.--Any person who violates
subsection (b), or attempts or conspires to do so, shall be
fined under this title, imprisoned not more than 5 years, or
both.</DELETED>
<DELETED> ``(2) Forfeiture.--</DELETED>
<DELETED> ``(A) In general.--The court, in imposing
a sentence on any person convicted of a violation
involving intimate visual depictions or visual
depictions of a nude minor under this section, or
convicted of a conspiracy of a violation involving
intimate visual depictions or visual depictions of a
nude minor under this section, shall order, in addition
to any other sentence imposed and irrespective of any
provision of State law, that such person forfeit to the
United States--</DELETED>
<DELETED> ``(i) any material distributed in
violation of this section;</DELETED>
<DELETED> ``(ii) such person's interest in
property, real or personal, constituting or
derived from any gross proceeds of such
violation, or any property traceable to such
property, obtained or retained directly or
indirectly as a result of such violation;
and</DELETED>
<DELETED> ``(iii) any property, real or
personal, used or intended to be used to commit
or to facilitate the commission of such
offense.</DELETED>
<DELETED> ``(B) Procedures.--Section 413 of the
Controlled Substances Act (21 U.S.C. 853), with the
exception of subsections (a) and (d), applies to the
criminal forfeiture of property pursuant to
subparagraph (A).</DELETED>
<DELETED> ``(3) Restitution.--Restitution shall be available
as provided in section 2264 of title 18, United States
Code.</DELETED>
<DELETED> ``(d) Exceptions.--</DELETED>
<DELETED> ``(1) Law enforcement, lawful reporting, and other
legal proceedings.--This section--</DELETED>
<DELETED> ``(A) does not prohibit any lawfully
authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United
States, a State, or a political subdivision of a State,
or of an intelligence agency of the United
States;</DELETED>
<DELETED> ``(B) shall not apply in the case of an
individual acting in good faith to report unlawful
activity or in pursuance of a legal or professional or
other lawful obligation; and</DELETED>
<DELETED> ``(C) shall not apply in the case of a
document production or filing associated with a legal
proceeding.</DELETED>
<DELETED> ``(2) Service providers.--This section shall not
apply to any provider of a communications service with regard
to content provided by another information content provider
unless the provider of the communications service intentionally
solicits, or knowingly and predominantly distributes, such
content.</DELETED>
<DELETED> ``(e) Threats.--Any person who threatens to commit an
offense under subsection (b) shall be punished as provided in
subsection (c).</DELETED>
<DELETED> ``(f) Extraterritoriality.--There is extraterritorial
Federal jurisdiction over an offense under this section if the
defendant or the depicted individual is a citizen or permanent resident
of the United States.</DELETED>
<DELETED> ``(g) Civil Forfeiture.--The following shall be subject to
forfeiture to the United States in accordance with provisions of
chapter 46 and no property right shall exist in them:</DELETED>
<DELETED> ``(1) Any material distributed in violation of
this chapter.</DELETED>
<DELETED> ``(2) Any property, real or personal, that was
used, in any manner, to commit or to facilitate the commission
of a violation involving intimate visual depictions or visual
depictions of a nude minor under this section or a conspiracy
of a violation involving intimate visual depictions or visual
depictions of a nude minor under this section.</DELETED>
<DELETED> ``(3) Any property, real or personal,
constituting, or traceable to the gross proceeds obtained or
retained in connection with or as a result of a violation
involving intimate visual depictions or visual depictions of a
nude minor under this section, a conspiracy of a violation
involving intimate visual depictions or visual depictions of a
nude minor under this section.</DELETED>
<DELETED> ``(h) Rule of Construction.--Nothing in this section shall
be construed to limit the application of any other relevant law,
including section 2252 of this title.''.</DELETED>
<DELETED> (b) Clerical Amendment.--The table of sections for chapter
88 of title 18, United States Code, is amended by inserting after the
item relating to section 1801 the following:</DELETED>
<DELETED>``1802. Certain activities relating to intimate visual
depictions.''.
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stopping Harmful Image Exploitation
and Limiting Distribution Act of 2023'' or the ``SHIELD Act of 2023''.
SEC. 2. CERTAIN ACTIVITIES RELATING TO INTIMATE VISUAL DEPICTIONS.
(a) In General.--Chapter 88 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1802. Certain activities relating to intimate visual depictions
``(a) Definitions.--In this section:
``(1) Communications service.--The term `communications
service' means--
``(A) a service provided by a person that is a
common carrier, as that term is defined in section 3 of
the Communications Act of 1934 (47 U.S.C. 153), insofar
as the person is acting as a common carrier;
``(B) an electronic communication service, as that
term is defined in section 2510;
``(C) an information service, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153); and
``(D) an interactive computer service, as that term
is defined in section 230(f) of the Communications Act
of 1934 (47 U.S.C. 230(f)).
``(2) Information content provider.--The term `information
content provider' has the meaning given that term in section
230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)).
``(3) Intimate visual depiction.--The term `intimate visual
depiction' means any visual depiction (as that term is defined
in section 2256(5)) of an individual who is recognizable by an
individual other than the depicted individual from the intimate
image itself or information or text displayed in connection
with the intimate image who has attained 18 years of age at the
time the intimate visual depiction is created and--
``(A) who is depicted engaging in sexually explicit
conduct; or
``(B) whose genitals, anus, pubic area, or female
nipple are unclothed and visible.
``(4) Visual depiction of a nude minor.--The term `visual
depiction of a nude minor' means any visual depiction (as that
term is defined in section 2256(5)) of an individual who is
recognizable by an individual other than the depicted
individual from the intimate image itself or information or
text displayed in connection with the intimate image who was
under 18 years of age at the time the visual depiction was
created in which the actual anus, genitals, or pubic area, or
post-pubescent female nipple, of the minor are unclothed,
visible, and displayed in a manner that does not constitute
sexually explicit conduct.
``(5) Sexually explicit conduct.--The term `sexually
explicit conduct' has the meaning given that term in section
2256(2)(A).
``(b) Offenses.--
``(1) In general.--Except as provided in subsection (d), it
shall be unlawful to knowingly mail, or to knowingly distribute
using any means or facility of interstate or foreign commerce
or affecting interstate or foreign commerce, an intimate visual
depiction of an individual--
``(A) with knowledge of the lack of consent of the
individual to the distribution;
``(B) where what is depicted was not voluntarily
exposed by the individual in a public or commercial
setting; and
``(C) where what is depicted is not a matter of
public concern.
For purposes of this paragraph, the fact that the subject of
the depiction consented to the creation of the depiction shall
not establish that that person consented to its distribution.
``(2) Minors.--Except as provided in subsection (d), it
shall be unlawful to knowingly mail, or to knowingly distribute
using any means or facility of interstate or foreign commerce
or affecting interstate or foreign commerce, a visual depiction
of a nude minor with intent to abuse, humiliate, harass, or
degrade the minor, or to arouse or gratify the sexual desire of
any person.
``(c) Penalty.--
``(1) In general.--Any person who violates subsection (b),
or attempts or conspires to do so, shall be fined under this
title, imprisoned not more than 5 years, or both.
``(2) Forfeiture.--
``(A) In general.--The court, in imposing a
sentence on any person convicted of a violation
involving intimate visual depictions or visual
depictions of a nude minor under this section, or
convicted of a conspiracy of a violation involving
intimate visual depictions or visual depictions of a
nude minor under this section, shall order, in addition
to any other sentence imposed and irrespective of any
provision of State law, that such person forfeit to the
United States--
``(i) any material distributed in violation
of this section;
``(ii) such person's interest in property,
real or personal, constituting or derived from
any gross proceeds of such violation, or any
property traceable to such property, obtained
or retained directly or indirectly as a result
of such violation; and
``(iii) any property, real or personal,
used or intended to be used to commit or to
facilitate the commission of such offense.
``(B) Procedures.--Section 413 of the Controlled
Substances Act (21 U.S.C. 853), with the exception of
subsections (a) and (d), applies to the criminal
forfeiture of property pursuant to subparagraph (A).
``(3) Restitution.--Restitution shall be available as
provided in section 2264 of this title.
``(d) Exceptions.--
``(1) Law enforcement, lawful reporting, and other legal
proceedings.--This section--
``(A) does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of
a law enforcement agency of the United States, a State,
or a political subdivision of a State, or of an
intelligence agency of the United States;
``(B) shall not apply in the case of an individual
acting in good faith to report unlawful or unsolicited
activity or in pursuance of a legal or professional or
other lawful obligation; and
``(C) shall not apply in the case of a document
production or filing associated with a legal
proceeding.
``(2) Service providers.--This section shall not apply to
any provider of a communications service with regard to content
provided by another information content provider unless the
provider of the communications service intentionally solicits,
or knowingly and predominantly distributes, such content.
``(e) Threats.--Any person who threatens to commit an offense under
subsection (b) shall be punished as provided in subsection (c).
``(f) Extraterritoriality.--There is extraterritorial Federal
jurisdiction over an offense under this section if the defendant or the
depicted individual is a citizen or permanent resident of the United
States.
``(g) Rule of Construction.--Nothing in this section shall be
construed to limit the application of any other relevant law, including
section 2252 of this title.''.
(b) Clerical Amendment.--The table of sections for chapter 88 of
title 18, United States Code, is amended by inserting after the item
relating to section 1801 the following:
``1802. Certain activities relating to intimate visual depictions.''.
(c) Conforming Amendment.--Section 2264(a) of title 18, United
States Code, is amended by inserting ``, or under section 1802 of this
title'' before the period.
Calendar No. 78
118th CONGRESS
1st Session
S. 412
_______________________________________________________________________
A BILL
To provide that it is unlawful to knowingly distribute private intimate
visual depictions with reckless disregard for the individual's lack of
consent to the distribution, and for other purposes.
_______________________________________________________________________
May 17, 2023
Reported with an amendment