H.R. 6334 — Deepfake Liability Act

This section amends Section 230(c)(1) of the Communications Act—which generally immunizes providers and users of interactive computer services from civil liability for third-party content—to condition such immunity on the provider implementing a reasonable duty-of-care process to address cyberstalking (i.e., deliberate conduct directed at a specific individual causing substantial emotional distress or fear of bodily harm) and intimate privacy violations (i.e., nonconsensual intimate visual depictions or sexually explicit digital forgeries). (Thus, noncompliant providers lose Section 230(c)(1) immunity for such violations.) The required process includes, at a minimum: (1) prevention efforts to the extent practicable; (2) a clear, accessible mechanism to implement notice-and-removal procedures under section 3(a) of the TAKE IT DOWN Act (47 U.S.C. 223a(a)); (3) data logging to preserve information for related legal proceedings without other uses; (4) removal or blocking of court-determined unlawful content; and (5) any additional processes required by the FCC. The section also amends Section 230(f)(3) to expand "creation or development" of user content—such that a service provider may be treated as the information content provider and lose immunity—to expressly include activities through solicitation, encouragement, or use of a generative model.

This section amends definitions in Section 223(h) of the Communications Act of 1934 (47 U.S.C. 223(h)) by (1) defining "sexually explicit digital forgery" as an intimate visual depiction of an identifiable individual created, materially manipulated, altered, or annotated to be virtually indistinguishable from an authentic depiction; (2) replacing references to "digital forgeries" with "sexually explicit digital forgeries" in specified headings and text; and (3) eliminating certain exceptions in paragraphs (2)(C) and (3)(C) by striking clause (iv) in each and redesignating clause (v) as (iv). (As background, Section 223 prohibits obscene, harassing, or threatening communications using telecommunications devices, with penalties of fines, up to two years imprisonment, or both; prior amendments via the TAKE IT DOWN Act incorporated prohibitions on nonconsensual digital forgeries of intimate images.) This section further revises Section 3 of the TAKE IT DOWN Act (47 U.S.C. 223a) by (1) updating the heading to "intimate privacy violations and content relating to cyberstalking"; (2) requiring covered platforms (i.e., websites or apps available in the U.S. with users who can share images or video) to establish a notice-and-removal process for covered individuals to report and request removal of qualifying intimate privacy violations (i.e., nonconsensual depictions of non-publicly exposed intimate matter not involving public concern that cause substantial emotional distress or fear of bodily harm to the individual and a reasonable person) or content relating to cyberstalking (i.e., nonconsensual, non-public-concern content directed at and causing similar distress to the individual); (3) specifying required elements of notifications, including signatures, identification of content, good-faith statements, and perjury declarations; (4) mandating clear, conspicuous notice of the process on the platform; and (5) directing platforms to remove reported content within 48 hours and any known identical copies. (Thus, the process expands prior requirements for nonconsensual intimate visual depictions to encompass broader intimate privacy violations and cyberstalking content, with stricter timelines and liability limitations.)

This section directs the Federal Trade Commission (FTC), in consultation with the Federal Communications Commission (FCC) and the Attorney General, to promulgate regulations under 5 U.S.C. §553 implementing the Act's amendments within 180 days of enactment; specifies that the amendments apply to information made available on an interactive computer service (as defined in 47 U.S.C. §230(f)) or a covered platform (as defined in section 4 of the TAKE IT DOWN Act (47 U.S.C. §223a note), as amended by this Act) on or after the enactment date; and states that the amendments may not be construed to infringe First Amendment rights.