Vondran Legal® - Revenge Porn and AI Deepfakes Law - Introducing, the DEFIANCE ACT.  Call us if you are involved in a Deepfake dispute at (877) 276-5084. 

Introduction

The Anti-Deepfake Porn measure, the Disrupt Explicit Forged Images and Non-Consensual Edits (DEFIANCE) Act, was approved by the Senate recently with a unanimous vote (bipartisan). In the House, Rep. Alexandria Ocasio-Cortez (D-N.Y.) sponsored the bill, which was introduced by Sens. Dick Durbin (D-Ill.) and Lindsey Graham (R-S.C.). This law, if signed, would enable victims to bring legal action against anyone who intentionally produces, receives, or disseminates non-consensual, AI-generated sexually explicit information. The statute of limitations for victims' cases is ten years.   For the first time, survivors of nonconsensual deepfake pornography would have federal rights thanks to the DEFIANCE Act, which would also give them the ability to sue anyone who intentionally creates, distributes, or receives nonconsensual sexually explicit digital forgeries.

Text of the Law - Senate Bill 3696

Here are some of the key provisions of the proposed new law.

SECTION 1. Short title.

This Act may be cited as the “Disrupt Explicit Forged Images and Non-Consensual Edits Act of 2024” or the “DEFIANCE Act of 2024”.

SEC. 2. Findings.

Congress finds that:

(1) Digital forgeries, often called deepfakes, are synthetic images and videos that look realistic. The technology to create digital forgeries is now ubiquitous and easy to use. Hundreds of apps are available that can quickly generate digital forgeries without the need for any technical expertise.

(2) Digital forgeries can be wholly fictitious but can also manipulate images of real people to depict sexually intimate conduct that did not occur. For example, some digital forgeries will paste the face of an individual onto the body of a real or fictitious individual who is nude or who is engaging in sexual activity. Another example is a photograph of an individual that is manipulated to digitally remove the clothing of the individual so that the person appears to be nude.

(3) The individuals depicted in such digital forgeries are profoundly harmed when the content is produced, disclosed, or obtained without the consent of those individuals. These harms are not mitigated through labels or other information that indicates that the depiction is fake.

(4) It can be destabilizing to victims whenever those victims are depicted in sexual digital forgeries against their will, as the privacy of those victims is violated and the victims lose control over their likeness and identity.

(5) Victims can feel helpless because the victims—

(A) may not be able to determine who has created the content; and

(B) do not know how to prevent further disclosure of the digital forgery or how to prevent more forgeries from being made.

(6) Victims may be fearful of being in public out of concern that individuals the victims encounter have seen the digital forgeries. This leads to social rupture through the loss of the ability to trust, stigmatization, and isolation.

(7) Victims of non-consensual, sexually intimate digital forgeries may experience depression, anxiety, and suicidal ideation. These victims may also experience the “silencing effect” in which the victims withdraw from online spaces and public discourse to avoid further abuse.

(8) Digital forgeries are often used to—

(A) harass victims, interfering with their employment, education, reputation, or sense of safety; or

(B) commit extortion, sexual assault, domestic violence, and other crimes.

(9) Because of the harms caused by non-consensual, sexually intimate digital forgeries, such digital forgeries are considered to be a form of image-based sexual abuse.

SEC. 3. Civil action relating to disclosure of intimate images.

(a) Definitions.—Section 1309 of the Consolidated Appropriations Act, 2022 (15 U.S.C. 6851) is amended—

(1) in the heading, by inserting “or nonconsensual activity involving digital forgeries” after “intimate images”; and

(2) in subsection (a)—

(A) in paragraph (2), by inserting “competent,” after “conscious,”;

(B) by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively;

(C) by redesignating paragraph (3) as paragraph (5);

(D) by inserting after paragraph (2) the following:

(3) DIGITAL FORGERY.—

“(A) IN GENERAL.—The term ‘digital forgery' means any intimate visual depiction of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual.

“(B) LABELS, DISCLOSURE, AND CONTEXT.—Any visual depiction described in subparagraph (A) constitutes a digital forgery for purposes of this paragraph regardless of whether a label, information disclosed with the visual depiction, or the context or setting in which the visual depiction is disclosed states or implies that the visual depiction is not authentic.”;

(E) in paragraph (5), as so redesignated—

(i) by striking “(5) Depicted” and inserting “(5) Identifiable”; and

(ii) by striking “depicted individual” and inserting “identifiable individual”; and

(F) in paragraph (6)(A), as so redesignated—

(i) in clause (i), by striking “; or” and inserting a semicolon;

(ii) in clause (ii)—

(I) in subclause (I), by striking “individual;” and inserting “individual; or”; and

(II) by striking subclause (III); and

(iii) by adding at the end the following:

(iii) an identifiable individual engaging in sexually explicit conduct; and

(b) Civil action.—Section 1309(b) of the Consolidated Appropriations Act, 2022 (15 U.S.C. 6851(b)) is amended—

(1) in paragraph (1)—

(A) by striking paragraph (A) and inserting the following:

(A) IN GENERAL.—Except as provided in paragraph (5)—

“(i) an identifiable individual whose intimate visual depiction is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the consent of the identifiable individual, where such disclosure was made by a person who knows or recklessly disregards that the identifiable individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for relief as set forth in paragraph (3);

“(ii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced or possessed the digital forgery with intent to disclose it, or knowingly disclosed or solicited the digital forgery, if—

“(I) the identifiable individual did not consent to such production or possession with intent to disclose, disclosure, or solicitation;

“(II) the person knew or recklessly disregarded that the identifiable individual did not consent to such production or possession with intent to disclose, disclosure, or solicitation; and

“(III) such production, disclosure, solicitation, or possession is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce; and

“(iii) an identifiable individual who is the subject of a digital forgery may bring a civil action in an appropriate district court of the United States for relief as set forth in paragraph (3) against any person that knowingly produced the digital forgery if—

“(I) the identifiable individual did not consent to such production;

“(II) the person knew or recklessly disregarded that the identifiable individual—

“(aa) did not consent to such production; and

“(bb) was harmed, or was reasonably likely to be harmed, by the production; and

“(III) such production is in or affects interstate or foreign commerce or uses any means or facility of interstate or foreign commerce.”; and

(B) in subparagraph (B)—

(i) in the heading, by inserting “identifiable” before “individuals”; and

(ii) by striking “an individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the individual” and inserting “an identifiable individual who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the identifiable individual”;

(2) in paragraph (2)—

(A) in subparagraph (A)—

(i) by inserting “identifiable” before “individual”;

(ii) by striking “depiction” and inserting “intimate visual depiction or digital forgery”; and

(iii) by striking “distribution” and inserting “disclosure, solicitation, or possession”; and

(B) in subparagraph (B)—

(i) by inserting “identifiable” before individual;

(ii) by inserting “or digital forgery” after each place the term “depiction” appears; and

(iii) by inserting “, solicitation, or possession” after “disclosure”;

(3) by redesignating paragraph (4) as paragraph (5);

(4) by striking paragraph (3) and inserting the following:

(3) RELIEF.—

(A) IN GENERAL.—In a civil action filed under this section, an identifiable individual may recover—

(i) damages as provided under subparagraph (C); and

(ii) the cost of the action, including reasonable attorney fees and other litigation costs reasonably incurred.

(B) PUNITIVE DAMAGES AND OTHER RELIEF.—The court may, in addition to any other relief available at law, award punitive damages or order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to delete, destroy, or cease display or disclosure of the intimate visual depiction or digital forgery.

(C) DAMAGES.—For purposes of subparagraph (A)(i), the identifiable individual may recover—

(i) liquidated damages in the amount of—

(I) $150,000; or

(II) $250,000 if the conduct at issue in the claim was—

(aa) committed in relation to actual or attempted sexual assault, stalking, or harassment of the identifiable individual by the defendant; or

(bb) the direct and proximate cause of actual or attempted sexual assault, stalking, or harassment of the identifiable individual by any person; or

(ii) actual damages sustained by the individual, which shall include any profits of the defendant that are attributable to the conduct at issue in the claim that are not otherwise taken into account in computing the actual damages.

(D) CALCULATION OF DEFENDANT'S PROFIT.—For purposes of subparagraph (C)(ii), to establish the defendant's profits, the identifiable individual shall be required to present proof only of the gross revenue of the defendant, and the defendant shall be required to prove the deductible expenses of the defendant and the elements of profit attributable to factors other than the conduct at issue in the claim.

(4) PRESERVATION OF PRIVACY.—In a civil action filed under this section, the court may issue an order to protect the privacy of a plaintiff, including by—

(A) permitting the plaintiff to use a pseudonym;

(B) requiring the parties to redact the personal identifying information of the plaintiff from any public filing, or to file such documents under seal; and

(C) issuing a protective order for purposes of discovery, which may include an order indicating that any intimate visual depiction or digital forgery shall remain in the care, custody, and control of the court.”;

(5) in paragraph (5)(A), as so redesignated—

(A) by striking “image” and inserting “visual depiction or digital forgery”; and

(B) by striking “depicted” and inserting “identifiable”; and

(6) by adding at the end the following:

(6) STATUTE OF LIMITATIONS.—Any action commenced under this section shall be barred unless the complaint is filed not later than 10 years from the later of—

(A) the date on which the identifiable individual reasonably discovers the violation that forms the basis for the claim; or

(B) the date on which the identifiable individual reaches 18 years of age.

(7) DUPLICATIVE RECOVERY BARRED.—No relief may be ordered under paragraph (3) against a person who is subject to a judgment under section 2255 of title 18, United States Code, for the same conduct involving the same identifiable individual and the same intimate visual depiction or digital forgery.”.

(c) Continued applicability of Federal, State, and Tribal law.—

(1) IN GENERAL.—This Act shall not be construed to impair, supersede, or limit a provision of Federal, State, or Tribal law.

(2) NO PREEMPTION.—Nothing in this Act shall prohibit a State or Tribal government from adopting and enforcing a provision of law governing disclosure of intimate images or nonconsensual activity involving a digital forgery, as defined in section 1309(a) of the Consolidated Appropriations Act, 2022 (15 U.S.C. 6851(a)), as amended by this Act, that is at least as protective of the rights of a victim as this Act.

Contact a California AI Deepfake Law Firm

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