Section 1 Short title
This Act may be cited as the “Everyone can Notice-and-Takedown Distribution of Child Sexual Abuse Material Act” or the “END CSAM Act”.
Everyone can Notice-and-Takedown Distribution of Child Sexual Abuse Material Act
A BILL
To hold social media companies liable for hosting or distributing child sexual abuse material.
Sec. 2 Definitions
In this Act:
Child sexual abuse material— The term child sexual abuse material has the meaning given the term child pornography in section 2256 of title 18, United States Code.
Covered interactive computer service— The term covered interactive computer service means an interactive computer service—
provided through a website, online application, or mobile application (including a single interactive computer service that is provided through more than one such website or application);
through which information provided by another information content provider is distributed;
that enables an individual user to create an account for the purpose of viewing, generating, or modifying content that can be viewed, shared, or otherwise interacted with by other third-party users of the interactive computer service; and
that does not have peer-to-peer messaging as its principal function.
Interactive computer service— The term interactive computer service has the meaning given the term in section 230 of the Communications Act of 1934 (47 U.S.C. 230).
Minor— The term minor has the meaning given the term in section 2256 of title 18, United States Code.
Social media company— The term social media company—
means a company that provides, in or affecting interstate or foreign commerce, a covered interactive computer service; and
does not include an organization described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code.
Sec. 3 Civil liability for social media companies hosting prohibited content
Prohibition— It shall be unlawful for a social media company to knowingly or recklessly host or distribute child sexual abuse material.
Civil penalty— A social media company that violates subsection (a) shall be liable to the United States Government for a civil penalty of not less than $100,000 and not more than $500,000, in accordance with this Act.
Sec. 4 Notice process for companies hosting prohibited content
In general— A social media company shall—
provide a notice process for persons to make the company aware that the company is hosting or distributing content in apparent violation of section 3(a); and
designate an agent of the company to receive notice under the notice process described in paragraph (1); and
make available on the website, web service, or web application of the company, in a location accessible to the public, the name, address, phone number, and electronic mail address of the agent designated under subparagraph (A).
Notice process requirements— The notice process required under subsection (a) shall readily enable a person to provide to the agent designated under subsection (a)(2) substantially the following:
Identification of each visual depiction claimed to be child sexual abuse material.
Information reasonably sufficient to permit the agent receiving the notice to contact the person, such as an address, telephone number, or electronic mail address.
A brief statement that—
affirms that the person has a good faith belief that each visual depiction described in paragraph (1) is child sexual abuse material; and
explains why the person has that belief.
Liability protection for disabling access to or removing visual depiction—
In general— Except as provided in paragraph (2), a social media company shall not be liable for any claim based on the company’s good faith disabling of access to, or removal of, a visual depiction that the company believes is child sexual abuse material.
No protection for disabling access or removing more than 10 days after receiving notice— Paragraph (1) shall not apply with respect to a visual depiction that a social media company disables access to or removes if the company—
was notified about the visual depiction under the notice process required under subsection (a); and
failed to disable access to or remove the visual depiction during the 10-day period beginning on the date of the notice described in subparagraph (A).
Lack of notice not an excuse for violation— It shall not be a defense to an alleged violation of section 3(a) that a social media company did not receive notice of the alleged violation under the notice process required under subsection (a) of this section.
Determination by social media company that visual depiction is not child sexual abuse material— If a social media company receives notice of an alleged violation of section 3(a) under the notice process required under subsection (a) of this section and determines that the content alleged to be hosted or distributed in violation of section 3(a) is not child sexual abuse material, the company shall, not later than the last day of the 10-day period beginning on the date of the notice, submit to the person who provided the notice a response that—
confirms receipt of the notice;
states that the company determined that the content is not child sexual abuse material; and
provides an explanation for the determination described in paragraph (2), including any relevant evidence.
Sec. 5 Qui tam civil action
Actions by private persons—
Right of action—
In general— If a person provides notice to a social media company regarding a visual depiction under the notice process required under section 4(a) and the social media company does not disable access to or remove the visual depiction during the 10-day period beginning on the date of the notice, the person may bring an action for the person and for the United States Government to recover a civil penalty under section 3(b) against the social media company for violating section 3(a).
Action in name of Government— An action under subparagraph (A) shall be brought in the name of the Government.
Service on Government; election to intervene—
Service on Government— A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses, including any evidence and information received under section 4(e), shall be served on the Government pursuant to Rule 4(i) of the Federal Rules of Civil Procedure.
Election to intervene— Not later than 30 days after the Government receives both the complaint and the material evidence and information under subparagraph (A), the Government shall—
intervene and proceed with the action, in which case the action shall be solely conducted by the Government; or
notify the court that the Government declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
No intervention or related actions by other parties— When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.
Rights of the parties to qui tam actions—
Government prosecution— If the Government proceeds with an action under subsection (a)—
the Government—
shall have the sole responsibility for prosecuting the action, subject to paragraph (2); and
shall not be bound by an act of the person bringing the action; and
the person who initiated the action shall not have the right to continue as a party to the action.
Limitation on dismissal by Government— The Government may dismiss an action brought under subsection (a) if the Government determines, based on a thorough and good faith examination of the material evidence and information presented to the Government, that the content alleged to be hosted or distributed in violation of section 3(a) is not child sexual abuse material.
Limitation on settlement by government— The Government may settle an action brought under subsection (a) with the defendant if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.
Private prosecution—
In general— If the Government elects not to proceed with an action under subsection (a), the person who initiated the action shall have the right to conduct the action.
Provision of case documents— If the Government so requests, the Government shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the Government’s expense).
Award to qui tam plaintiff—
Government prosecution— If the Government proceeds with an action brought by a person under subsection (a)—
the person shall receive not less than 25 percent of the proceeds of the action;
any payment to the person under subparagraph (A) shall be made from the proceeds of the action;
the person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs; and
all expenses, fees, and costs described in subparagraph (C) shall be awarded against the defendant.
Private prosecution— If the Government does not proceed with an action under subsection (a)—
the person bringing the action or settling the claim shall receive not less than 50 percent of the proceeds of the action or settlement of the claim;
any payment to the person under subparagraph (A) shall be made from the proceeds of the action;
the person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs; and
all expenses, fees, and costs described in subparagraph (C) shall be awarded against the defendant.
Unclean hands—
Reduction in share of proceeds for qui tam plaintiff— Whether or not the Government proceeds with an action under subsection (a), if the court finds that the action was brought by a person who planned and initiated the violation of section 3(a) upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action that the person would otherwise receive under paragraph (1) or (2) of this subsection, taking into account the role of the person in advancing the case to litigation and any relevant circumstances pertaining to the violation.
Criminal conviction—
Dismissal of party— If the person bringing an action under subsection (a) is convicted of criminal conduct arising from the person's role in the violation of section 3(a), the person—
shall be dismissed from the action; and
may not receive any share of the proceeds of the action.
Right of Government to continue action— A dismissal under clause (i) shall not prejudice the right of the United States to continue the action, represented by the Department of Justice.
Award of attorneys' fees and costs to defendant— If the Government does not proceed with an action under subsection (a) and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action.
Certain actions barred— A person may not bring an action under subsection (a) that is based on allegations that are the subject of a civil action to which the Government is already a party.
Dismissal by court— The court shall dismiss an action or claim brought under subsection (a) if, as determined based on facts found by the court, the content alleged to be hosted or distributed in violation of section 3(a) is not child sexual abuse material.
Government not liable for certain expenses— The Government is not liable for expenses that a person incurs in bringing an action under subsection (a).
Relation to section 230 of the Communications Act of 1934— Nothing in section 230 of the Communications Act of 1934 (47 U.S.C. 230) shall be construed to impair or limit any claim in a civil action brought under this section.