HB3694 - Relating to the unlawful production or distribution of certain sexually explicit media and to the removal of certain intimate visual depictions published on online platforms without the consent of the person depicted; increasing criminal penalties.

  89R17334 JRR-D     By: Raymond, Rodríguez Ramos, Guillen H.B. No. 3694       A BILL TO BE ENTITLED   AN ACT   relating to the unlawful production or distribution of certain   sexually explicit media and to the removal of certain intimate   visual depictions published on online platforms without the consent   of the person depicted; increasing criminal penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act may be cited as the Exploitation   Protection Act.          SECTION 2.  Subtitle C, Title 5, Business & Commerce Code, is   amended by adding Chapter 121 to read as follows:   CHAPTER 121. UNAUTHORIZED INTIMATE VISUAL DEPICTIONS           Sec. 121.001.  DEFINITIONS. In this chapter:                 (1)  "Covered platform":                       (A)     means an Internet website, online service,   online application, or mobile application that:                             (i)     is publicly accessible and primarily   provides a forum for user-generated content, including messages,   videos, images, games, and audio files; or                             (ii)     is engaged in the business of   publishing, curating, hosting, or making available content of   intimate visual depictions; and                       (B)  does not include:                             (i)     an Internet service provider as defined   by Section 324.055;                             (ii)  electronic mail; or                             (iii)     an online service, application, or   website:                                   (a)     that consists primarily of   content that is not user generated but is preselected by the   provider; and                                   (b)     for which any chat, comments, or   interactive functionality is incidental to, directly related to, or   dependent on the provision described by Sub-subparagraph (a).                 (2)  "Identifiable individual" means an individual:                       (A)     who appears in whole or in part in an intimate   visual depiction; and                       (B)     whose face, likeness, or other   distinguishing characteristic is displayed in connection with the   intimate visual depiction.                 (3)     "Intimate area" has the meaning assigned by   Section 21.15, Penal Code.                 (4)  "Intimate visual depiction" means a depiction of:                       (A)     an identifiable individual engaged in sexual   conduct; or                       (B)     an intimate area of an identifiable   individual.                 (5)     "Sexual conduct" has the meaning assigned by   Section 21.16, Penal Code.           Sec.   121.002.     APPLICABILITY TO INTIMATE VISUAL DEPICTIONS   IN PUBLIC PLACE. This chapter applies to an intimate visual   depiction of an identifiable individual in a public place, as   defined by Section 1.07, Penal Code, only if the individual did not:                 (1)     voluntarily display any intimate areas depicted;   or                 (2)     consent to the sexual conduct that is the subject   of the depiction.           Sec.   121.003.     NOTICE AND REMOVAL OF UNAUTHORIZED INTIMATE   VISUAL DEPICTIONS. (a) A covered platform shall establish a   process by which an identifiable individual, or the individual's   authorized representative, may:                 (1)     notify the covered platform of an intimate visual   depiction of the identifiable individual that was published without   the consent of the identifiable individual; and                 (2)     submit a request for removal of the intimate   visual depiction.           (b)     A notification and request for removal under Subsection   (a) must be in writing and must also include:                 (1)     an identification of, and information reasonably   sufficient for the covered platform to locate, the intimate visual   depiction of the identifiable individual;                 (2)     a brief statement that the identifiable individual   has a good faith belief that the individual did not consent to the   publication of the intimate visual depiction; and                 (3)     information sufficient to enable the covered   platform to contact the identifiable individual or the individual's   authorized representative.           (c)     A covered platform shall provide a clear and conspicuous   disclosure, on the platform, of the notice and removal process   established under Subsection (a).   The disclosure:                 (1)  must be in plain language;                 (2)     must contain the responsibilities of the covered   platform under Subsection (d);                 (3)     must provide the manner of submission of   notifications and requests for removal; and                 (4)     may be provided through a clear and conspicuous   link to another web page.           (d)     On receiving a removal request in accordance with this   section from an identifiable individual, or the individual's   authorized representative, a covered platform shall, as soon as   practicable, but not later than 48 hours after receiving the   request:                 (1)  remove the intimate visual depiction; and                 (2)     make reasonable efforts to identify and remove any   known identical copies of the intimate visual depiction.           Sec.   121.004.     DECEPTIVE TRADE PRACTICE. A violation of   this chapter is a deceptive trade practice under Subchapter E,   Chapter 17, and is actionable under that subchapter.          SECTION 3.  The heading to Section 21.165, Penal Code, is   amended to read as follows:          Sec. 21.165.  UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN   SEXUALLY EXPLICIT MEDIA [ VIDEOS ].          SECTION 4.  Section 21.165(a), Penal Code, is amended by   amending Subdivision (1) and adding Subdivision (3) to read as   follows:                (1)  "Deep fake media [ video ]" means a visual depiction   [ a video, ] created or altered through [ with ] 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   manually or through an automated process [ intent to deceive ], that   appears to a reasonable person to depict a real person ,   indistinguishable from an authentic visual depiction of the real   person, performing an action that did not occur in reality.                 (3)     "Visual depiction" means a photograph, motion   picture film, videotape, digital image or video, or other visual   recording.          SECTION 5.  Section 21.165, Penal Code, is amended by   amending Subsections (b) and (c) and adding Subsections (b-1),   (c-1), and (c-2) to read as follows:          (b)  A person commits an offense if, without the effective   consent of the person appearing to be depicted, the person   knowingly produces or distributes by electronic means [ a ] deep fake   media [ video ] that appears to depict the person :                 (1)     with visible computer-generated intimate parts or   with the visible intimate parts of another human being as the   intimate parts of the person; or                 (2)     engaging in sexual conduct in which the person did   not engage [ with the person's intimate parts exposed or engaged in   sexual conduct ].           (b-1)     Consent required by Subsection (b) is valid only if   the person appearing to be depicted knowingly and voluntarily   signed a written agreement that was drafted in plain language. The   agreement must include:                 (1)  a general description of the deep fake media; and                 (2)     if applicable, the audiovisual work into which the   deep fake media will be incorporated.          (c)  An offense under this section is a Class A misdemeanor ,   except that the offense is a felony of the third degree if it is   shown on the trial of the offense that:                 (1)     the person appearing to be depicted is younger   than 18 years of age; or                 (2)     the actor has been previously convicted of an   offense under this section .           (c-1)     It is not a defense to prosecution under this section   that the deep fake media:                 (1)     contains a disclaimer stating that the media was   unauthorized or that the person appearing to be depicted did not   participate in the creation or development of the deep fake media;   or                 (2)     indicates, through a label or otherwise, that the   depiction is not authentic.           (c-2)     It is an affirmative defense to prosecution under this   section that the production or distribution of the deep fake media   occurs in the course of:                 (1)     lawful and common practices of law enforcement or   medical treatment;                 (2)  reporting unlawful activity; or                 (3)     a legal proceeding, if the production or   distribution is permitted or required by law.          SECTION 6.  The changes in law made by this Act to Section   21.165, Penal Code, apply only to an offense committed on or after   the effective date of this Act. 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