S. 4994 — Introduced in Senate

II 116th CONGRESS 2d Session S. 4994 IN THE SENATE OF THE UNITED STATES December 9, 2020Ms. Hassan (for herself, Mr. Hawley, and Mr. Tillis) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide civil relief for victims of the disclosure of certain intimate images, and for other purposes. 1. Short title This Act may be cited as the Intimate Imagery and Privacy Protection Act of 2020. 2. Civil action relating to disclosure of intimate images (a) Definitions In this section: (1) Consent The term consent means, with respect to an individual, an affirmative, conscious, and voluntary authorization made by the individual free from force, fraud, misrepresentation, or coercion of the depicted individual. (2) Commercial pornographic content The term commercial pornographic content means any material that is subject to the record keeping requirements under section 2257 of title 18, United States Code. (3) Depicted individual The term depicted individual means an individual whose body is disclosed in whole or in part in an intimate image. (4) Disclose The term disclose means to transfer, publish, distribute, or make accessible an intimate image. (5) Identifiable The term identifiable means recognizable by an individual other than the depicted individual from— (A) the intimate image itself; or (B) information or text displayed in connection with the intimate image. (6) Intimate image The term intimate image— (A) means a photograph, film, video recording, or digital recording that shows— (i) the uncovered genitals, pubic area, anus, or female nipple of an individual; (ii) the display or transfer of bodily sexual fluids on to any part of the body of an individual; (iii) an individual engaging in sexually explicit conduct; or (iv) an individual being subjected to sexually explicit conduct; and (B) includes any image described in subparagraph (A) captured or recorded while the depicted individual was in a public place if— (i) the depicted individual did not voluntarily display the content depicted in the image; or (ii) the depicted individual did not consent to the sexual conduct depicted in the image. (7) Sexually explicit conduct The term sexually explicit conduct has the meaning given the term in subparagraphs (A) and (B) of section 2256(2) of title 18, United States Code. (b) Civil action (1) Right of action Except as provided in paragraph (4), a depicted individual, or in the case of a depicted individual who is a minor, the parent of the depicted individual, whose intimate image is disclosed, in or through interstate or foreign commerce or using a means of interstate or foreign commerce (including the internet), without the consent of the depicted individual, and such disclosure was made by a person who acted knowingly without, or with reckless disregard for, the consent of the depicted individual to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for appropriate relief. (2) Consent For purposes of an action under paragraph (1)— (A) evidence that the depicted individual provided consent to the capture or recording of the intimate image shall not, by itself, constitute evidence that the depicted individual provided consent to the disclosure of the intimate image; and (B) evidence that the depicted individual disclosed the image to the person alleged to have violated paragraph (1) shall not, by itself, constitute evidence that the depicted individual provided consent to the further disclosure of the intimate image. (3) Relief (A) In general In a civil action filed under this section— (i) an individual may recover the actual damages sustained by the individual or liquidated damages in the amount of $150,000, and the cost of the action, including reasonable attorney's fees and other litigation costs reasonably incurred; and (ii) the 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 image. (B) Preservation of anonymity In ordering relief under subparagraph (A), the court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym. (4) Exceptions A depicted individual may not bring an action for relief under this section relating to— (A) an intimate image that is commercial pornographic content unless— (i) the content was produced by force, fraud, misrepresentation, or coercion of the depicted individual; and (ii) the claim of force, fraud, misrepresentation, or coercion under clause (i) is demonstrated through a preponderance of evidence; (B) a disclosure made in good faith— (i) to a law enforcement officer or agency; (ii) as part of a legal proceeding; (iii) as part of medical education, diagnosis, or treatment; or (iv) in the reporting or investigation of— (I) unlawful content; or (II) unsolicited or unwelcome conduct; (C) a matter of public concern or public interest; or (D) a disclosure reasonably intended to assist the depicted individual.