OLL19B01 DISCUSSION DRAFT 116TH CONGRESS 1ST SESSION S. ll S.L.C. To establish a National Commission on Online Child Exploitation Prevention, and for other purposes. IN THE SENATE OF THE UNITED STATES Mr. GRAHAM llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To establish a National Commission on Online Child Exploitation Prevention, 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, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Eliminating Abusive 5 and Rampant Neglect of Interactive Technologies Act of 6 2019’’ or the ‘‘EARN IT Act of 2019’’. 7 SEC. 2. DEFINITIONS. 8 In this Act: 9 10 (1) CHAIRMAN.—The term ‘‘Chairman’’ means the Chairman of the Federal Trade Commission. R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 2 1 (2) COMMISSION.—The term ‘‘Commission’’ 2 means the National Commission on Online Child Ex- 3 ploitation Prevention. 4 (3) INTERACTIVE COMPUTER SERVICE.—The 5 term ‘‘interactive computer service’’ has the meaning 6 given the term in section 230(f)(2) of the Commu- 7 nications Act of 1934 (47 U.S.C. 230(f)(2)). 8 (4) INSTITUTION OF HIGHER EDUCATION.—The 9 term ‘‘institution of higher education’’ has the 10 meaning given the term in section 101 of the Higher 11 Education Act of 1965 (20 U.S.C. 1001). 12 SEC. 3. NATIONAL COMMISSION ON ONLINE CHILD EXPLOI- 13 TATION PREVENTION. 14 (a) ESTABLISHMENT.—There is established a Na- 15 tional Commission on Online Child Exploitation Preven16 tion. 17 (b) PURPOSE.—The purpose of the Commission is to 18 develop recommended best practices for providers of inter19 active computer services regarding the prevention of online 20 child exploitation conduct. 21 22 (c) MEMBERSHIP.— (1) COMPOSITION.— 23 24 (A) IN GENERAL.—The be composed of 15 members. R4J YR MHL Commission shall DISCUSSION DRAFT OLL19B01 S.L.C. 3 1 (B) AGENCY HEADS.—The following Fed- 2 eral officials shall serve as members of the 3 Commission: 4 (i) The Attorney General or his or her 5 representative. 6 (ii) The Secretary of Homeland Secu- 7 rity or his or her representative. 8 (iii) The Chairman or his or her rep- 9 resentative. 10 (C) OTHER 11 MEMBERS.—Of the remaining 12 members of the Commission— 12 (i) 3 shall be appointed by the Major- 13 ity Leader of the Senate; 14 (ii) 3 shall be appointed by the Minor- 15 ity Leader of the Senate; 16 (iii) 3 shall be appointed by the 17 Speaker of the House of Representatives; 18 and 19 (iv) 3 shall be appointed by the Mi- 20 nority Leader of the House of Representa- 21 tives. 22 (2) QUALIFICATIONS.—Of the 12 members of 23 the 24 (1)(C)— R4J YR MHL Commission appointed under paragraph DISCUSSION DRAFT OLL19B01 S.L.C. 4 1 (A) 2 shall have experience in handling 2 internet crimes against children in a law en- 3 forcement capacity; 4 (B) 2 shall have experience in handling 5 internet crimes against children in a prosecu- 6 torial capacity; 7 (C) 2 shall have experience in providing 8 victims services for victims of child exploitation; 9 (D) 2 shall have experience in computer 10 science or software engineering; 11 (E) 2 shall have experience in child safety 12 at an interactive computer service with not less 13 than 30,000,000 registered monthly users in 14 the United States; and 15 (F) 2 shall have experience in child safety 16 at an interactive computer service with less 17 than 10,000,000 registered monthly users in 18 the United States. 19 (3) DATE.—The initial appointments of mem- 20 bers to the Commission under paragraph (1)(C) 21 shall be made not later than 90 days after the date 22 of enactment of this Act. 23 (d) PERIOD OF APPOINTMENT; VACANCIES.— R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 5 1 (1) PERIOD OF APPOINTMENT.—A member of 2 the Commission shall be appointed for a term of 5 3 years. 4 (2) VACANCIES.— 5 (A) AFFECT ON COMMISSION.—Any va- 6 cancy in the Commission shall not affect the 7 powers of the Commission. 8 (B) FILLING OF VACANCIES.—A vacancy 9 in the Commission shall be filled in the same 10 manner as the original appointment under sub- 11 section (c)(1). 12 (e) INITIAL MEETING.—The Commission shall hold 13 the first meeting of the Commission not later than 60 days 14 after the date on which a majority of the members of the 15 Commission have been appointed. 16 (f) CHAIRPERSON.—The Attorney General or his or 17 her representative shall serve as the Chairperson of the 18 Commission. 19 (g) QUORUM.—A majority of the members of the 20 Commission shall constitute a quorum, but a lesser num21 ber of members may hold a meeting. 22 (h) MEETINGS.—The Commission shall meet at the 23 call of the Chairperson. 24 (i) AUTHORITY OF COMMISSION.—The Commission 25 may, for the purpose of carrying out this section and sec- R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 6 1 tion 4, hold such hearings, sit and act at such times and 2 places, take such testimony, and receive such evidence as 3 the Commission considers appropriate. 4 (j) INFORMATION FROM FEDERAL AGENCIES.— 5 (1) IN GENERAL.—The Commission may secure 6 directly from any Federal department or agency 7 such information as the Commission considers nec- 8 essary to carry out this section and section 4. 9 (2) FURNISHING INFORMATION.—Upon request 10 of the Chairperson of the Commission for informa- 11 tion under paragraph (1), the head of a Federal de- 12 partment or agency shall furnish the information to 13 the Commission. 14 (k) TRAVEL EXPENSES.—A member of the Commis- 15 sion shall serve without compensation, but shall be allowed 16 travel expenses, including per diem in lieu of subsistence, 17 at rates authorized for employees of agencies under sub18 chapter I of chapter 57 of title 5, United States Code, 19 while away from the home or regular places of business 20 of the member in the performance of services for the Com21 mission. 22 (l) DURATION.—Section 14 of the Federal Advisory 23 Committee Act (5 U.S.C. App.) shall not apply to the 24 Commission. R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 7 1 2 3 SEC. 4. DUTIES OF THE COMMISSION. (a) RECOMMENDED BEST PRACTICES.— (1) INITIAL 4 RECOMMENDATIONS.— (A) IN GENERAL.—Not later than ø18 5 months¿ after the date on which a majority of 6 the members of the Commission required to be 7 appointed under section 3(c)(1)(C) have been so 8 appointed, the Commission shall develop and 9 submit to the Attorney General recommended 10 best practices regarding the prevention of online 11 child exploitation conduct. 12 (B) ALTERNATIVE BEST PRACTICES.—In 13 carrying out subparagraph (A), in addition to 14 the primary set of best practices developed and 15 submitted, the Commission may develop and 16 submit alternative best practices that take into 17 consideration the size, type of product, or busi- 18 ness model of a provider of an interactive com- 19 puter service. 20 (2) SUPPORT REQUIREMENT.—The Commission 21 may only recommend a best practice under para- 22 graph (1) if not fewer than 10 members of the Com- 23 mission support the best practice. 24 25 (3) MATTERS ADDRESSED.—The matters ad- dressed by the recommended best practices devel- R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 8 1 oped and submitted by the Commission under para- 2 graph (1) shall include— 3 (A) identifying, categorizing, and reporting 4 material related to child exploitation or child 5 sexual abuse; 6 (B) coordinating with law enforcement 7 agencies and other industry participants to pre- 8 serve, remove from view, and report material 9 relating to child exploitation or child sexual 10 abuse; 11 (C) retention of evidence and attribution or 12 user identification data relating to child exploi- 13 tation or child sexual abuse, including such re- 14 tention by subcontractors; 15 (D) receiving and triaging reports of child 16 exploitation or child sexual abuse from users of 17 interactive computer services; 18 (E) implementing a rating system to cat- 19 egorize the severity of images and videos related 20 to child exploitation or child sexual abuse; 21 22 (F) age limits and age verification systems; 23 24 employing (G) employing age ratings and related disclosures; R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 9 1 (H) outsourcing child exploitation or child 2 sexual abuse prevention services to third par- 3 ties; and 4 (I) offering parental control products that 5 enable customers to limit the types of internet 6 websites and content accessible to children. 7 (4) RELEVANT CONSIDERATIONS.—In devel- 8 oping best practices under paragraph (1), the Com- 9 mission shall consider the interest of providers of 10 interactive computer services in providing customers 11 with quality products, data security, and privacy. 12 (5) BIENNIAL UPDATES.—Not less frequently 13 than once every 2 years, the Commission shall up- 14 date and resubmit to the Attorney General rec- 15 ommended best practices under paragraph (1). 16 (b) PUBLICATION OF BEST PRACTICES.— 17 (1) IN GENERAL.—Not later than øll¿ after 18 the date on which the Commission submits rec- 19 ommended best practices under subsection (a), in- 20 cluding updated recommended best practices under 21 paragraph (5) of that subsection, the Attorney Gen- 22 eral shall— 23 24 (A) review, and modify if necessary, the recommended best practices; and R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 10 1 (B) publish a final version of the best 2 practices on the website of the Department of 3 Justice and in the Federal Register. 4 (2) WRITTEN FINDINGS.—Any modification 5 made by the Attorney General under paragraph (1) 6 shall be accompanied by written findings setting 7 forth the basis for, and reasons supporting, the 8 modification. 9 (c) CERTIFICATION OF BEST PRACTICES.—Not later 10 than 1 year after the Attorney General first publishes the 11 best practices under subsection (b), and annually there12 after, an officer of a provider of an interactive computer 13 service shall submit a written certification to the Attorney 14 General stating that— 15 (1) the provider has conducted a thorough re- 16 view of the implementation and operation of the best 17 practices; and 18 (2) such review does not reveal any material 19 non-compliance with the requirements of the best 20 practices. 21 (d) CIVIL INVESTIGATIVE DEMANDS.— 22 23 (1) ISSUANCE; RIAL; TESTIMONY.— 24 25 SERVICE; PRODUCTION OF MATE- (A) IN GENERAL.—Whenever the Attorney General has reason to believe that an officer of R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 11 1 a provider of an interactive computer service 2 has filed a false certification under subsection 3 (c), the Attorney General may issue in writing, 4 and cause to be served upon the provider, a 5 civil investigative demand requiring the provider 6 to— 7 (i) produce any documentary material 8 relevant to such certification for inspection 9 and copying; 10 (ii) answer in writing written interrog- 11 atories with respect to such documentary 12 material; 13 (iii) give oral testimony concerning 14 such documentary material; or 15 (iv) furnish any combination of such 16 material, answers, or testimony. 17 (B) SERVICE.—If a civil investigative de- 18 mand issued under subparagraph (A) is an ex- 19 press demand for any product of discovery, the 20 Attorney General shall— 21 (i) cause to be served, in any manner 22 authorized under section 3733 of title 31, 23 United States Code, a copy of the demand 24 upon the person from whom the discovery 25 was obtained; and R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 12 1 (ii) notify the person to whom the de- 2 mand is issued of the date on which the 3 copy was served. 4 5 (2) CONTENTS; FOR PRODUCT OF DISCOVERY.— 6 7 RETURN DATE FOR DEMAND (A) IN GENERAL.—Each civil investigative demand issued under paragraph (1) shall— 8 (i) state the nature of the Attorney 9 General’s belief that a false certification 10 has been filed under subsection (c); 11 (ii) if the demand is for production of 12 documentary material— 13 (I) describe the class or classes of 14 documentary material to be produced 15 thereunder with such definiteness and 16 certainty as to permit such material 17 to be fairly identified; 18 (II) prescribe a return date or 19 dates that will provide a reasonable 20 period of time within which the mate- 21 rial so demanded may be assembled 22 and made available for inspection and 23 copying; and R4J YR MHL OLL19B01 DISCUSSION DRAFT S.L.C. 13 1 (III) identify the custodian to 2 whom the material shall be made 3 available; 4 (iii) if the demand is for answers to 5 written interrogatories— 6 (I) propound with definiteness 7 and certainty the written interrog- 8 atories to be answered; 9 (II) prescribe a date or dates at 10 which time answers to written inter- 11 rogatories shall be submitted; and 12 (III) identify the custodian to 13 whom the answers shall be submitted; 14 and 15 (iv) if the demand is for the giving of 16 oral testimony— 17 (I) prescribe a date, time, and 18 place at which oral testimony shall be 19 commenced; and 20 (II) identify— 21 (aa) an investigator who 22 shall conduct the examination; 23 and R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 14 1 (bb) the custodian to whom 2 the transcript of the examination 3 shall be submitted. 4 (B) RETURN DATE FOR PRODUCT OF DIS- 5 COVERY.—Any 6 under paragraph (1) that is an express demand 7 for any product of discovery shall not be re- 8 turned or returnable until 20 days after a copy 9 of the demand has been served upon the person civil investigative demand issued 10 from whom the discovery was obtained. 11 (3) APPLICABILITY 12 (A) IN OF OTHER PROVISIONS.— GENERAL.—Subject to subpara- 13 graph (B), subsections (b) through (l) of sec- 14 tion 3733 of title 31, United States Code, shall 15 apply with respect to a civil investigative de- 16 mand issued under paragraph (1) of this sub- 17 section in the same manner as those sub- 18 sections apply to a civil investigative demand 19 issued under subsection (a) of such section 20 3733. 21 (B) FALSE CLAIMS REFERENCES.—For 22 purposes of subparagraph (A), a reference in 23 section 3733 of title 31, United States Code, 24 to— R4J YR MHL OLL19B01 DISCUSSION DRAFT S.L.C. 15 1 (i) a violation of a false claims law 2 shall be deemed to be a reference to the fil- 3 ing of a false certification under subsection 4 (c) of this section; 5 (ii) a false claims law investigation 6 shall be deemed to be a reference to an in- 7 quiry into whether any person is or has 8 been engaged in filing a false certification 9 under subsection (c) of this section; and 10 (iii) a false claims law investigator 11 shall be deemed to be a reference to— 12 (I) any attorney or investigator 13 employed by the Department of Jus- 14 tice who is charged with the duty of 15 enforcing or carrying into effect this 16 section; or 17 (II) any officer or employee of 18 the United States acting under the di- 19 rection and supervision of an attorney 20 or investigator described in subclause 21 (I) in connection with an inquiry into 22 whether any person is or has been en- 23 gaged in filing a false certification 24 under subsection (c) of this section. R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 16 1 2 SEC. 5. ENFORCEMENT. (a) OFFENSE.—It shall be unlawful for an officer of 3 a provider of an interactive computer service to knowingly 4 submit a written certification under section 4(c) that con5 tains a false statement. 6 (b) CRIMINAL PENALTIES.—Any person who violates 7 subsection (a) shall be fined in accordance with title 18, 8 United States Code, imprisoned for not more than 2 years, 9 or both. 10 11 SEC. 6. EARNING IMMUNITY. (a) IN GENERAL.—Section 230(e) of the Commu- 12 nications Act of 1934 (47 U.S.C. 230(e)) is amended by 13 adding at the end the following: 14 15 ‘‘(6) NO EFFECT ON CHILD SEXUAL EXPLOI- TATION LAW.— 16 ‘‘(A) LIABILITY OF PROVIDERS OF INTER- 17 ACTIVE COMPUTER SERVICE.—Nothing 18 section (other than subsection (c)(2)(A)) shall 19 be construed to impair or limit— in this 20 ‘‘(i) any claim in a civil action 21 brought against a provider of an inter- 22 active computer service under section 2255 23 of title 18, United States Code, if the con- 24 duct underlying the claim— 25 ‘‘(I) constitutes a violation of sec- 26 tion 2252 of that title; or R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 17 1 ‘‘(II) is considered a violation of 2 section 2252 of that title by operation 3 of subsection (a)(2) of such section 4 2255; 5 ‘‘(ii) any charge in a criminal prosecu- 6 tion brought against a provider of an inter- 7 active computer service under State law if 8 the conduct underlying the charge would 9 constitute a violation of section 2252 of 10 title 18, United States Code; or 11 ‘‘(iii) any claim in a civil action 12 brought against a provider of an inter- 13 active computer service under State law if 14 the conduct underlying the claim— 15 ‘‘(I) would constitute a violation 16 of section 2252 of title 18, United 17 States Code; or 18 ‘‘(II) would be considered a viola- 19 tion of section 2252 of title 18, 20 United States Code, for purposes of 21 subsection (a)(1) of section 2255 of 22 that title, by operation of subsection 23 (a)(2) of such section 2255. 24 25 ‘‘(B) SAFE HARBOR.—Subparagraph (A) shall not apply to a claim in a civil action or R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 18 1 charge in a criminal prosecution brought 2 against a provider of an interactive computer 3 service if— 4 ‘‘(i) the provider has implemented rea- 5 sonable measures relating to the matters 6 described in section 4(a)(2) of the Elimi- 7 nating Abusive and Rampant Neglect of 8 Interactive Technologies Act of 2019 to 9 prevent the use of the interactive computer 10 service for the exploitation of minors; or 11 ‘‘(ii) an officer of the provider has 12 certified to the Attorney General under 13 subsection (c) of section 4 of the Elimi- 14 nating Abusive and Rampant Neglect of 15 Interactive Technologies Act of 2019 that 16 the provider has implemented, and is in 17 compliance with, the child exploitation pre- 18 vention best practices published by the At- 19 torney General under subsection (b) of 20 that section.’’. 21 (b) MENS REA FOR CIVIL SUITS.—Section 2255 of 22 title 18, United States Code, is amended— 23 24 (1) by redesignating subsection (a) as paragraph (1) and adjusting the margin accordingly; R4J YR MHL DISCUSSION DRAFT OLL19B01 S.L.C. 19 1 (2) by inserting before paragraph (1), as so 2 designated, the following: 3 ‘‘(a) RIGHT OF ACTION.—’’; and 4 5 6 (3) in subsection (a), as so designated, by adding at the end the following: ‘‘(2) CIVIL REMEDY FOR CERTAIN ACTIVITIES 7 RELATING TO MATERIAL INVOLVING THE SEXUAL 8 EXPLOITATION OF MINORS.—Conduct 9 of an interactive computer service (as defined in sec- 10 tion 230 of the Communications Act of 1934 (47 11 U.S.C. 230)) that would violate section 2252 if that 12 section were applied by substituting ‘recklessly’ for 13 ‘knowingly’ each place that term appears shall be 14 considered a violation of section 2252 for purposes 15 of paragraph (1) of this subsection.’’. 16 (c) EFFECTIVE DATE.—The amendments made by by a provider 17 this section shall take effect on the earlier of— 18 (1) the date that is 1 year after the date on 19 which the Attorney General first publishes the best 20 practices under section 4(b); or 21 22 23 24 (2) the date that is ø4¿ years after the date of enactment of this Act. SEC. 7. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated such sums 25 as may be necessary to carry out this Act. R4J YR MHL