Public Citizen Model State Law Regulating Non-Consensual Intimate Deepfakes
A few important recommendations to keep in mind when drafting this legislation:
- Provide for both civil liability and criminal penalties. Civil liability can afford the victim injunctive and economic relief while the criminal penalty can act as a deterrent.
- Allow for a defense of consent but require more than mere assertions of oral consent to satisfy it.
- Disclaimers of inauthenticity or unauthorized creation should not be permitted as a defense against intimate deepfakes,as such disclosure does not mitigate the reputational and psychological harm done to the victims.
Model Language:
SEC. 1. Short title.
This Act may be cited as the [[“Preventing Deepfakes of Intimate Images Act”]].
SEC. 2. Civil Action: Disclosure of intimate digital depictions.
“(a) Definitions.—In this section:
“(1) CONSENT.—The term ‘consent’ means an affirmative, conscious, and voluntary authorization made by the individual free from force, fraud, misrepresentation, or coercion.
“(2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.
“(3) DIGITAL DEPICTION.—The term ‘digital depiction’ means a realistic visual depiction of an individual that has been created or altered using digital manipulation and includes stored data which is capable of conversion into a visual image.
“(4) DISCLOSE.— The term “disclose” means to transfer, publish, distribute, or make accessible.
“(5) INTIMATE DIGITAL DEPICTION.—The term ‘intimate digital depiction’ means a digital depiction of an individual that has been created or altered using digital manipulation and that appears to depict—
“(A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;
“(B) the display or transfer of bodily sexual fluids—
“(i) onto any part of the body of an identifiable individual; or
“(ii) from the body of an identifiable individual; or
“(C) an identifiable individual engaging in sexually explicit conduct.
“(6) SEXUALLY EXPLICIT CONDUCT.—The term ‘sexually explicit conduct’ means graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; graphic or lascivious simulated bestiality, masturbation, or sadistic or masochistic abuse; or graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;
“(b) Right of action.—
“(1) IN GENERAL.—Except as provided in subsection (e), an individual who is the subject of an intimate digital depiction that is disclosed without the consent of the individual, where such disclosure was made by a person who knows that, or recklessly disregards whether, the individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court as set forth in subsection (d).
“(2) RIGHTS ON BEHALF OF CERTAIN INDIVIDUALS.—In the case of an individual who have not attained 18 years of age or are incompetent, incapacitated, or deceased, the legal guardian of the individual or representative of the individual’s estate, another family member, or any other person appointed as suitable by the court, may assume the individual’s rights under this section, but in no event shall the defendant be named as such representative or guardian.
“(c) Consent.—For purposes of an action under subsection (b)—
“(1) an individual’s consent to the creation of the intimate digital depiction shall not establish that the individual consented to its disclosure; and
“(2) consent shall be deemed validly given only if—
“(A) it is set forth in an agreement written in plain language signed knowingly and voluntarily by the depicted individual; and
“(B) it includes a general description of the intimate digital depiction and, if applicable, the visual work into which it will be incorporated.
“(d) Relief.—
“(1) IN GENERAL.—
“(A) DAMAGES.—In a civil action filed under this section, an individual may recover any of the following:
“(i) An amount equal to the monetary gain made by the defendant from the creation, development, or disclosure of the intimate digital depiction.
“(ii) Either of the following:
“(I) The actual damages sustained by the individual as a result of the intimate digital depiction, including damages for emotional distress.
“(II) Liquidated damages in the amount of $150,000.
“(iii) Punitive damages.
“(iv) The cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred.
“(B) EQUITABLE RELIEF.—In a civil action filed under this section, a court may, in addition to any other relief available at law, order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to cease display or disclosure of the intimate digital depiction.
“(2) PRESERVATION OF ANONYMITY.—In ordering relief under this subsection, the court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym.
“(e) Exceptions.—An identifiable individual may not bring an action for relief under this section relating to—
“(1) a disclosure the defendant can show was made in good faith—
“(A) to or by a law enforcement officer or agency in the course of reporting or investigating—
“(i) unlawful activity; or
“(ii) unsolicited or unwelcome conduct; or
“(B) as part of a legal proceeding;
“or
“(3) a disclosure made in good faith and reasonably intended to assist the identifiable individual.
“(f) In camera.—A court may authorize an in camera proceeding under this section.
“(g) Disclaimers.—It shall not be a defense to an action under this section that there is a disclaimer stating that the intimate digital depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material.
“(h) Limitations.—For purposes of this section, a provider of an interactive computer service shall not be held liable on account of—
“(1) any action voluntarily taken in good faith to restrict access to or availability of intimate digital depictions; or
“(2) any action taken to enable or make available to information content providers or other persons the technical means to restrict access to intimate digital depictions.”.
SEC. 3. Criminal action: Intimate digital depictions
“(a) Offense.—Whoever discloses or threatens to disclose or solicits the disclosure of an intimate digital depiction—
“(1) with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or
“(2) with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual,
shall be punished as provided under subsection (b).
“(b) Penalty.—Any person who commits an offense under subsection (a) shall be—
“(1) fined under this title, imprisoned for not more than 2 years, or both; or
“(2) fined under this title, imprisoned for not more than 10 years, or both, in the case of a violation in which the creation, reproduction, or distribution of the intimate digital depiction could be reasonably expected to—
“(A) affect the conduct of any administrative, legislative, or judicial proceeding of a governmental agency, including the administration of an election; or
“(B) facilitate violence.
“(c) Disclaimers.—It shall not be a defense to an action under this section that there is a disclaimer stating that the intimate digital depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material.
“(d) Limitations.—For purposes of this section, a provider of an interactive computer service shall not be held liable on account of—
“(1) any action voluntarily taken in good faith to restrict access to or availability of intimate digital depictions; or
“(2) any action taken to enable or make available to information content providers or other persons the technical means to restrict access to intimate digital depictions.
“(e) Definitions.—In this section:
“(1) CONSENT.— The term ‘consent’ means an affirmative, conscious, and voluntary authorization made by the individual free from force, fraud, misrepresentation, or coercion.
“(2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.
“(3) DIGITAL DEPICTION.— The term ‘digital depiction’ means a realistic visual depiction of an individual that has been created or altered using digital manipulation and includes stored data which is capable of conversion into a visual image.
“(4) DISCLOSE.— The term “disclose” means to transfer, publish, distribute, or make accessible.
“(5) INTIMATE DIGITAL DEPICTION.—The term ‘intimate digital depiction’ means a digital depiction of an individual that has been created or altered using digital manipulation and that appears to depict—
“(A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;
“(B) the display or transfer of bodily sexual fluids—
“(i) onto any part of the body of an identifiable individual; or
“(ii) from the body of an identifiable individual; or
“(C) an identifiable individual engaging in sexually explicit conduct.
“(6) SEXUALLY EXPLICIT CONDUCT.— The term ‘sexually explicit conduct’ means graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited; graphic or lascivious simulated bestiality, masturbation, or sadistic or masochistic abuse; or graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person.