OLL17704 S.L.C. 115TH CONGRESS 1ST SESSION S. ll To amend title 18, United States Code, to provide that it is unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes. IN THE SENATE OF THE UNITED STATES llllllllll Ms. HARRIS (for herself, Mr. BURR, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To amend title 18, United States Code, to provide that it is unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, OLL17704 S.L.C. 2 1 2 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Ending Nonconsensual 3 Online User Graphic Harassment Act of 2017’’ or the 4 ‘‘ENOUGH Act’’. 5 SEC. 2. CERTAIN ACTIVITIES RELATING TO INTIMATE VIS- 6 7 UAL DEPICTIONS. (a) IN GENERAL.—Chapter 88 of title 18, United 8 States Code, is amended by adding at the end the fol9 lowing: 10 ‘‘§ 1802. Certain activities relating to intimate visual 11 12 depictions ‘‘(a) DEFINITIONS.—In this section: 13 ‘‘(1) COMMUNICATIONS 14 ‘communications service’ means— SERVICE.—The term 15 ‘‘(A) a service provided by a person that is 16 a common carrier, as that term is defined in 17 section 3 of the Communications Act of 1934 18 (47 U.S.C. 153), insofar as the person is acting 19 as a common carrier; 20 21 ‘‘(B) an electronic communication service, as that term is defined in section 2510; 22 ‘‘(C) an information service, as that term 23 is defined in section 3 of the Communications 24 Act of 1934 (47 U.S.C. 153); and 25 ‘‘(D) an interactive computer service, as 26 that term is defined in section 230(f) of the OLL17704 S.L.C. 3 1 Communications Act of 1934 (47 U.S.C. 2 230(f)). 3 ‘‘(2) DISTRIBUTE.—The term ‘distribute’ in- 4 cludes enabling access, such as by sharing a private 5 reference. 6 ‘‘(3) INFORMATION CONTENT PROVIDER.—The 7 term ‘information content provider’ has the meaning 8 given that term in section 230(f) of the Communica- 9 tions Act of 1934 (47 U.S.C. 230(f)). 10 ‘‘(4) INTIMATE VISUAL DEPICTION.—The term 11 ‘intimate visual depiction’ means any visual depic- 12 tion (as that term is defined in section 2256(5)), in 13 original or modified format, of an individual who is 14 reasonably identifiable from the image itself or infor- 15 mation displayed in connection with the image, in 16 which— 17 18 19 ‘‘(A) the individual is engaging in sexually explicit conduct; or ‘‘(B) the naked genitals or post-pubescent 20 female nipple of the individual are visible. 21 ‘‘(5) SEXUALLY EXPLICIT CONDUCT.—The term 22 ‘sexually explicit conduct’ has the meaning given 23 that term in section 2256(2)(A), except that it does 24 not include simulated acts. OLL17704 S.L.C. 4 1 ‘‘(b) OFFENSE.—Except as provided in subsection 2 (d), it shall be unlawful to knowingly use any means or 3 facility of interstate or foreign commerce to distribute an 4 intimate visual depiction of an individual— 5 6 7 8 ‘‘(1) with knowledge of or reckless disregard for— ‘‘(A) the lack of consent of the individual to the distribution; 9 ‘‘(B) the reasonable expectation of the in- 10 dividual that the depiction would remain pri- 11 vate; and 12 ‘‘(C) harm that the distribution could 13 cause to the individual; and 14 ‘‘(2) without an objectively reasonable belief 15 that such distribution touches upon a matter of pub- 16 lic concern. 17 ‘‘(c) PENALTY.—Any person who violates subsection 18 (b) shall be fined under this title, imprisoned not more 19 than 5 years, or both. 20 ‘‘(d) EXCEPTIONS.— 21 ‘‘(1) LAW 22 ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section— 23 ‘‘(A) does not prohibit any lawful law en- 24 forcement, correctional, or intelligence activity; OLL17704 S.L.C. 5 1 ‘‘(B) shall not apply in the case of an indi- 2 vidual reporting unlawful activity in good faith; 3 and 4 ‘‘(C) shall not apply in the case of a docu- 5 ment production or filing associated with a legal 6 proceeding. 7 ‘‘(2) SERVICE PROVIDERS.—This section shall 8 not apply to any provider of a communications serv- 9 ice with regard to content provided by another infor- 10 mation content provider unless the provider of the 11 communications service intentionally solicits or 12 knowingly and predominantly distributes content 13 that the provider of the communications service has 14 actual knowledge is in violation of this section. 15 ‘‘(e) THREATS AND EXTORTION.—Any person who 16 intentionally threatens to commit an offense under sub17 section (b), regardless of whether the threat is an act of 18 extortion, shall be punished as provided in subsection (c). 19 ‘‘(f) VENUE AND EXTRATERRITORIALITY.—A pros- 20 ecution under this section may be brought in a district 21 where the defendant or the depicted individual resides or 22 in a district where the intimate visual depictions are dis23 tributed or made available. There is extraterritorial Fed24 eral jurisdiction over an offense under this section if the OLL17704 S.L.C. 6 1 defendant or the depicted individual is a citizen or perma2 nent resident of the United States.’’. 3 (b) CLERICAL AMENDMENT.—The table of sections 4 of chapter 88 of title 18, United States Code, is amended 5 by inserting after the item relating to section 1801 the 6 following: ‘‘1802. Certain activities relating to intimate visual depictions.’’.