S146-119

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.

2. Criminal prohibition on intentional disclosure of nonconsensual intimate visual depictions Section 223 of the Communications Act of 1934 (47 U.S.C. 223) is amended— by redesignating subsection (h) as subsection (i); and by inserting after subsection (g) the following: In this subsection: The term consent means an affirmative, conscious, and voluntary authorization made by an individual free from force, fraud, duress, misrepresentation, or coercion. 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. The term identifiable individual means an individual— who appears in whole or in part in an intimate visual depiction; and whose face, likeness, or other distinguishing characteristic (including a unique birthmark or other recognizable feature) is displayed in connection with such intimate visual depiction. The term interactive computer service has the meaning given the term in section 230. 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). The term minor means any individual under the age of 18 years. 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— 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; what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting; what is depicted is not a matter of public concern; and publication of the intimate visual depiction— is intended to cause harm; or causes harm, including psychological, financial, or reputational harm, to the identifiable individual. 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— abuse, humiliate, harass, or degrade the minor; or arouse or gratify the sexual desire of any person. Subparagraphs (A) and (B) shall not apply to— a 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 an intelligence agency of the United States; a disclosure made reasonably and in good faith— to a law enforcement officer or agency; as part of a document production or filing associated with a legal proceeding; as part of medical education, diagnosis, or treatment or for a legitimate medical, scientific, or education purpose; in the reporting of unlawful content or unsolicited or unwelcome conduct or in pursuance of a legal, professional, or other lawful obligation; or to seek support or help with respect to the receipt of an unsolicited intimate visual depiction; a disclosure reasonably intended to assist the identifiable individual; 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 the publication of an intimate visual depiction that constitutes— child pornography (as that term is defined in section 2256 of title 18, United States Code); or 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). 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— the digital forgery was published without the consent of the identifiable individual; what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting; what is depicted is not a matter of public concern; and publication of the digital forgery— is intended to cause harm; or causes harm, including psychological, financial, or reputational harm, to the identifiable individual. 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— abuse, humiliate, harass, or degrade the minor; or arouse or gratify the sexual desire of any person. Subparagraphs (A) and (B) shall not apply to— a 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 an intelligence agency of the United States; a disclosure made reasonably and in good faith— to a law enforcement officer or agency; as part of a document production or filing associated with a legal proceeding; as part of medical education, diagnosis, or treatment or for a legitimate medical, scientific, or education purpose; in the reporting of unlawful content or unsolicited or unwelcome conduct or in pursuance of a legal, professional, or other lawful obligation; or to seek support or help with respect to the receipt of an unsolicited intimate visual depiction; a disclosure reasonably intended to assist the identifiable individual; 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 the publication of an intimate visual depiction that constitutes— child pornography (as that term is defined in section 2256 of title 18, United States Code); or 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). 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. 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. For purposes of paragraphs (2) and (3)— 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 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. 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). 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. 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. 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— any material distributed in violation of that paragraph; 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 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. 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). 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. 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. 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). 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. (h)Intentional disclosure of nonconsensual intimate visual depictions(1)DefinitionsIn this subsection:(A)ConsentThe term consent means an affirmative, conscious, and voluntary authorization made by an individual free from force, fraud, duress, misrepresentation, or coercion.(B)Digital forgeryThe 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 individualThe 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 serviceThe term interactive computer service has the meaning given the term in section 230.(E)Intimate visual depictionThe 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)MinorThe term minor means any individual under the age of 18 years.(2)Offense involving authentic intimate visual depictions(A)Involving adultsExcept 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 minorsExcept 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)ExceptionsSubparagraphs (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 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 adultsExcept 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 minorsExcept 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)ExceptionsSubparagraphs (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 adultsAny 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 minorsAny 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 constructionFor 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 depictionsAny 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 adultsAny 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 minorsAny 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 generalThe 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)ProceduresSection 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)RestitutionThe 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 constructionNothing in this subsection shall be construed to limit the application of any other relevant law, including section 2252 of title 18, United States Code..

3. Notice and removal of nonconsensual intimate visual depictions 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— notify the covered platform of an intimate visual depiction published on the covered platform that— includes a depiction of the identifiable individual; and was published without the consent of the identifiable individual; and submit a request for the covered platform to remove such intimate visual depiction. A notification and request for removal of an intimate visual depiction submitted under the process established under subparagraph (A) shall include, in writing— a physical or electronic signature of the identifiable individual (or an authorized person acting on behalf of such individual); an identification of, and information reasonably sufficient for the covered platform to locate, the intimate visual depiction of the identifiable individual; 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 information sufficient to enable the covered platform to contact the identifiable individual (or an authorized person acting on behalf of such individual). 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— is easy to read and in plain language; and 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. 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 later than 48 hours after receiving such request— remove the intimate visual depiction; and make reasonable efforts to identify and remove any known identical copies of such depiction. 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. 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)). 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. 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.). Nothing in this Act shall be construed to limit the authority of the Federal Trade Commission under any other provision of law. 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.

4. Definitions In this Act: The term Commission means the Federal Trade Commission. 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. The term covered platform means a website, online service, online application, or mobile application— that serves the public; and that primarily provides a forum for user-generated content, including messages, videos, images, games, and audio files; or 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. The term covered platform shall not include the following: A provider of broadband internet access service (as described in section 8.1(b) of title 47, Code of Federal Regulations, or successor regulation). Electronic mail. Except as provided in subparagraph (A)(ii)(II), an online service, application, or website— that consists primarily of content that is not user generated but is preselected by the provider of such online service, application, or website; and 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).

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.