S. 412 — what changed

“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)).

changed “(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—individual—

changed “(A) who has attained 18 years of age at the time the intimate visual depiction is depicted engaging in sexually explicit conduct; orcreated;

changed “(B) whose genitals, anus, pubic area, who is recognizable to a third party from the intimate image itself or female nipple are unclothed and visible.information or text displayed in connection with the intimate image itself or information or text displayed in connection with the intimate image; and

changed “(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.“(C)

added “(i) who is depicted engaging in sexually explicit conduct; or

added “(ii) whose genitals, anus, pubic area, or female nipple are unclothed and visible.

added “(4) Minor—The term minor has the meaning given that term in section 2256.

“(5) Sexually explicit conduct—The term “sexually explicit conduct” has the meaning given that term in section 2256(2)(A).

removed “(b) Offense

removed “(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—

removed “(A) with knowledge of or reckless disregard for the lack of consent of the individual to the distribution;

changed “(B) where what “(6) Visual depiction of a nude minor—The term “visual depiction of a nude minor” means any visual depiction (as that term is depicted was not voluntarily exposed 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 a public 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 commercial setting; andpubic area, or post-pubescent female nipple, of the minor are unclothed, visible, and displayed in a manner that does not constitute sexually explicit conduct.

changed “(C) where what is depicted is not a matter of public concern.“(b) Offenses

changed “(2) Minors—Except “(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, a an intimate 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.an individual—

added “(A) that was obtained or created under circumstances in which the actor knew or reasonably should have known the individual depicted had a reasonable expectation of privacy;

added “(B) where what is depicted was not voluntarily exposed by the individual in a public or commercial setting;

added “(C) where what is depicted is not a matter of public concern; and

added “(D) if the distribution—

added “(i) is intended to cause harm; or

added “(ii) causes harm, including psychological, financial, or reputational harm, to the individual depicted.

added “(2) Involving 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

added “(1) In general

added “(A) Visual depiction of a nude minor—Any person who violates subsection (b)(2) shall be fined under this title, imprisoned not more than 3 years, or both.

added “(B) Intimate visual depiction—Any person who violates subsection (b)(1) shall be fined under this title, imprisoned for not more than 2 years, or both.

removed “(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

added “(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 such violation.

removed “(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).

added “(3) Restitution—Restitution shall be available as provided in section 2264 of this title.

removed “(3) Restitution—Restitution shall be available as provided in section 2264 of title 18, United States Code.

“(d) Exceptions

“(1) Law enforcement, lawful reporting, and other legal proceedings—This section—

added “(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; and

added “(B) shall not apply to distributions that are made reasonably and in good faith—

added “(i) to report unlawful or unsolicited activity or in pursuance of a legal or professional or other lawful obligation;

added “(ii) to seek support or help with respect to the receipt of an unsolicited intimate visual depiction;

added “(iii) relating to an individual who possesses or distributes a visual depiction of himself or herself engaged in nudity or sexually explicit conduct;

added “(iv) to assist the depicted individual;

added “(v) for legitimate medical, scientific, or educational purposes; or

added “(vi) as part of a document production or filing associated with a legal proceeding.

removed “(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;

removed “(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

removed “(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.

added “(e) Threats—Any person who intentionally threatens to commit an offense under subsection (b) for the purpose of intimidation, coercion, extortion, or to create mental distress shall be punished as provided in subsection (c).

removed “(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.

added “(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.”

removed “(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:

removed “(1) Any material distributed in violation of this chapter.

removed “(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.

removed “(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.

removed “(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.”