S. 2536 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2536 IN THE SENATE OF THE UNITED STATES June 26, 2014 Mr. Kirk (for himself and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to provide for enhanced criminal and civil remedies in the protection of children and other victims of commercial sexual exploitation and related crimes. 1. Short title This Act may be cited as the Stop Advertising Victims of Exploitation Act of 2014 or the SAVE Act. 2. Findings and construction of provisions Congress finds that— (1) sex trafficking is modern day slavery and violates the Thirteenth Amendment to the Constitution of the United States; (2) this Act and the amendments made by this Act are enacted as an exercise of the authority of Congress to enforce the Thirteenth Amendment to the Constitution of the United States by appropriate legislation; (3) this Act and the amendments made by this Act are also enacted as an exercise of the authority of Congress under the commerce clause of section 8 of article I of the Constitution of the United States to regulate, by appropriate legislation, the instrumentalities of interstate and foreign commerce, as well as that which directly and materially affects interstate and foreign commerce; and (4) this Act and the amendments made by this Act should be liberally construed to effectuate its remedial purposes to the full extent permitted by the First Amendment to the Constitution of the United States, including the commercial speech doctrine. 3. Protection of children and other victims of commercial sexual exploitation (a) In general Chapter 77 of title 18, United States Code, is amended by inserting after section 1591 the following: 1591A. Commercial sexual exploitation (a) Definitions In this section, the following definitions apply: (1) Adult advertisement The term adult advertisement means any advertisement that— (A) is subject to the recordkeeping requirements under section 2257; or (B) is designed, in whole or in part, to induce a lawful or unlawful commercial exchange for— (i) a sexual act or sexual contact, as those terms are defined in section 2246; (ii) sexually explicit conduct, as defined in section 2256; (iii) a commercial sex act, as defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102); or (iv) the goods or services of an adult escort or erotic performer involving any commercial exchange described in clause (i), (ii), or (iii). (2) Advertisement The term advertisement includes any written or verbal statement, illustration, or depiction in any medium which is designed, in whole or in part, to induce a lawful or unlawful commercial exchange of a good or service for money, property, or another item of value, including another good or service. (3) Commercially promote The term commercially promote means to aid, abet, counsel, command, induce, procure, or cause the creation, placement, distribution, publication, or maintenance of any advertisement, or any series of advertisements, in exchange for any financial gain, property, or other item of value, obtained from any information content provider of any such advertisement or any series of advertisements. (4) Common carrier; telecommunications carrier The terms common carrier and telecommunications carrier have the meanings given those terms in section 3 of the Communications Act of 1934 (47 U.S.C. 153). (5) Information content provider The term information content provider has the meaning given the term in section 230 of the Communications Act (47 U.S.C. 230). (6) Interactive advertising network service provider The term interactive advertising network service provider means an independent, third party broker of online, wireless, or interactive television advertising, including banners, sponsorships, email, keyword searches, slotting fees, and interactive television commercials, and not including classified advertising or a website referral link. (7) Internet access service; Internet information location tool The terms Internet access service and Internet information location tool have the meanings given those terms in section 231 of the Communications Act of 1934 (47 U.S.C. 231). (8) Person The term person includes any individual or entity that is capable of holding legal or beneficial interest in property. (9) State The term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any political subdivision, department, agency, or instrumentality of any such entity. (b) Offense (1) In general It shall be unlawful for a person to use any means or facility of interstate or foreign commerce to— (A) knowingly sell, commercially promote, place, or maintain an adult advertisement, or any series of adult advertisements in a medium whose predominant purpose or use is to facilitate commercial transactions; and (B) act with reckless disregard of the fact that the adult advertisement, or the series of adult advertisements, facilitates or is designed to facilitate— (i) an offense under paragraph (1) or (2) of section 1591(a) in which the person recruited, enticed, harbored, transported, provided, obtained, or maintained has not attained the age of 18 years at the time of such offense; or (ii) an offense in violation of any provision of State law prohibiting felony offenses relating to child pimping, child prostitution, child sexual abuse, assault on children, or the sex trafficking of children. (2) Criminal penalty Any person who violates paragraph (1) shall be fined under this title, imprisoned not more than 10 years, or both, for each such violation. (3) Limitations on liability (A) Generic search or utility services An Internet access service provider, Internet browser or mobile browser provider, external search engine provider, external Internet information location tool provider (including a domain name registry or other domain name or root zone service provider), interactive advertising network service provider, common carrier, telecommunications carrier, or other such generic search or utility provider shall not incur any criminal or civil liability under this subsection or be subject to the recordkeeping requirements under subsection (c) solely based on providing such generic search or utility services. (B) Victims younger than 18 years of age For the purposes of paragraph (1), any defendant in full compliance with subsection (c) may not be found reckless as to the fact of the age element of a minor victim of a predicate offense specified in paragraph (1). (4) Estoppel A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this section shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding, but a prior criminal proceeding is not a prerequisite to the commencement of any civil action under this chapter or any other provision of law. (c) Recordkeeping for adult advertisements (1) Adult advertising verification requirements Subject to subsection (b)(3)(A), any person who uses any means or facility of interstate or foreign commerce to sell, commercially promote, place, or maintain an adult advertisement, or a series of adult advertisements, shall— (A) before selling, commercially promoting, or placing the adult advertisement, or series of adult advertisements— (i) verify the identity of each person purchasing advertisement space to post such adult advertisement, or series of adult advertisements, by— (I) obtaining confirmation of the identity of the person; (II) obtaining a copy of a government-issued document containing a photograph, the name, and the date of birth of the person; and (III) obtaining such other indicia of the identity of the person as may be required by regulation; and (ii) create and maintain for not less than 7 years individually identifiable records pertaining to each person described in clause (i) that include the information described in clause (i) and such other identifying information as may be required by regulation; (B) before selling, commercially promoting, or placing the adult advertisement, or series of adult advertisements— (i) verify the identity of each person depicted within such adult advertisement, or series of adult advertisements, by taking the actions described in subclauses (I) through (III) of subparagraph (A)(i); and (ii) create and maintain for not less than 7 years individually identifiable records pertaining to each person described in clause (i) that include the information described in subparagraph (A)(i) and such other identifying information as may be required by regulation; and (C) before selling, commercially promoting, or placing the adult advertisement, or series of adult advertisements— (i) verify that each person whose goods or services are advertised by such adult advertisement, or series of adult advertisements, is not less than 18 years of age by obtaining such indicia of the identity of the person as may be required by regulation; and (ii) create and maintain for not less than 7 years individually identifiable records pertaining to information described in clause (i) that include such identifying information as may be required by regulation. (2) Recordkeeping Any person to whom paragraph (1) applies shall— (A) maintain the records required under paragraph (1) at the business premises of the person, or at such other place as the Attorney General may by regulation prescribe; and (B) make the records available to the Attorney General, any designee of the Attorney General, the attorney general of a State, and any designee of the attorney general of a State for inspection at all reasonable times. (3) Use of information (A) In general No information or evidence obtained from a record required to be created or maintained by an individual under this subsection shall be used, directly or indirectly, as evidence against that individual in a criminal proceeding where such use would violate that individual’s constitutional privilege against compulsory self-incrimination. (B) Exception Information or evidence obtained from a record required to be created or maintained by an individual under this subsection may be used against the individual in a prosecution or other action for a violation of this subsection or for a violation of any applicable provision of law relating to the furnishing of false information. (4) Notice requirement (A) In general Any person to whom paragraph (1) applies shall cause to be affixed to each adult advertisement sold, commercially promoted, placed, or maintained by the person, in such manner and in such form as the Attorney General shall by regulation establish, a statement describing where the records required by this subsection may be located with respect to each person depicted or advertised within such adult advertisement or series of adult advertisements. (B) Organizations If the person to whom paragraph (1) applies is an organization, the statement required by this paragraph shall include the name, title, and business address of the individual employed by the organization responsible for maintaining the records required by this subsection. (5) Regulations The Attorney General shall issue appropriate regulations to carry out this section, which shall include regulations directing any person to whom paragraph (1) applies to take reasonable measures to ensure the means or facility of interstate or foreign commerce used by the person is not being used to facilitate prostitution or sexual exploitation of children by— (A) reviewing postings before they are published to ensure the postings do not offer minors for commercial sex or contain sexually explicit images of minors, and immediately removing such postings; (B) prohibiting the use of euphemisms and code words for, or used as a part of, a commercial exchange described in subsection (a)(1)(B); (C) preventing the reposting of previously banned or removed postings or postings by persons who repeatedly post inappropriate content; (D) requiring a person who posts an adult advertisement to provide a valid telephone number and credit card number (regardless of whether a fee is charged for the posting); (E) if a fee is charged for posting an adult advertisement, prohibiting the use of anonymous payment methods, including algorithm currencies, virtual currencies, prepaid cards, and gift cards; (F) requiring the reporting of any instances of apparent child sexual exploitation or online enticement of children to law enforcement agencies and the National Center for Missing and Exploited Children; (G) including information in the means or facility of interstate or foreign commerce directing users to report information about the prostitution of children to the National Center for Missing and Exploited Children and the National Human Trafficking Resource Center; and (H) affixing to each adult advertisement placed or maintained on the means or facility of interstate or foreign commerce, in such manner and in such form as the Attorney General shall by regulation establish, contact information regarding how to contact the CyberTipline of the National Center for Missing and Exploited Children. (6) Criminal penalty (A) In general Any person to whom paragraph (1) applies, shall be fined not less than $250,000 and not more than $350,000 for each violation, imprisoned not more than 5 years, or both, if such person— (i) fails to create or maintain the records as required by this subsection or by any regulation promulgated under this subsection; (ii) knowingly makes any false entry in or knowingly fails to make an appropriate entry in, any record required by this subsection or any regulation promulgated under this section; (iii) knowingly fails to comply with the provisions of this subsection or any regulation promulgated under this section; or (iv) refuses to permit the Attorney General, a designee of the Attorney General, the attorney general of a State, or a designee of the attorney general of a State to conduct an inspection under this subsection. (B) Criminal penalty for repeat offenders In the case of a second or subsequent conviction of a violation described in subparagraph (A) by a person to whom paragraph (1) applies, the person shall be fined not less than $350,000 and not more than $500,000 for each such violation, imprisoned for not more than 15 years, or both. . (b) Criminal forfeiture Section 982(a) of title 18, United States Code, is amended by adding at the end the following: (9) The court, in sentencing a defendant convicted of an offense under section 1591A, shall order that the defendant forfeit to the United States any real or personal property— (A) used or intended to be used to commit, to facilitate, or to promote the commission of such offense; and (B) constituting, derived from, or traceable to the gross proceeds that the defendant obtained directly or indirectly as a result of the offense. . (c) Civil action Section 1595(a) of title 18, United States Code, is amended by inserting or person (as defined in section 1591A) after individual. (d) Extraterritorial jurisdiction Section 1596(a) of title 18, United States Code, is amended by striking or 1591 and inserting 1591, or 1591A. (e) Duty To report Section 2258A of title 18, United States Code, is amended— (1) by striking subsection (a)(2) and inserting the following: (2) Facts or circumstances The facts or circumstances described in this paragraph are any facts or circumstances— (A) from which there is an apparent violation of— (i) section 1466A; (ii) section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography; or (iii) section 2422(b); or (B) that involve commercial sexual exploitation of children or online enticement of children. ; (2) in subsection (b)(1), by striking violated a Federal law described in subsection (a)(2) and inserting violated a Federal law described in subsection (a)(2)(A) or engaged in conduct described in subsection (a)(2)(B); and (3) by striking subsection (e) and inserting the following: (e) Failure To report An electronic communication service provider or remote computing service provider that fails to make a report required under subsection (a)(1), with reckless disregard of the requirement to make a report required under subsection (a)(1), shall be fined— (1) in the case of an initial such failure to make a report, not more than $250,000; and (2) in the case of any second or subsequent such failure to make a report, not more than $500,000. . (f) False statements Section 1001(a) of title 18, United States Code, is amended, in the matter following paragraph (3), by adding at the end the following: If the matter relates to an offense under section 1591A, the term of imprisonment imposed under this section shall be not more than 15 years.. (g) Technical and conforming amendment The table of sections for chapter 77 of title 18, United States Code, is amended by inserting, after the item relating to section 1591, the following: 1591A. Commercial sexual exploitation. . 4. Severability If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act and the application of the provision or amendment to any other person or circumstance shall not be affected.