Text of US SB 3314 (2023)

II 118TH CONGRESS 1ST SESSION S. 3314 To require certain interactive computer services to adopt and operate tech- nology verification measures to ensure that users of the platform are not minors, and for other purposes. IN THE SENATE OF THE UNITED STATES NOVEMBER 15, 2023 Mr. LEE introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require certain interactive computer services to adopt and operate technology verification measures to ensure that users of the platform are not minors, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Shielding Children’s 4 Retinas from Egregious Exposure on the Net Act’’ or the 5 ‘‘SCREEN Act’’. 6 SEC. 2. FINDINGS; SENSE OF CONGRESS. 7 (a) FINDINGS.—Congress finds the following: 8 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 2 •S 3314 IS (1) Over the 3 decades preceding the date of 1 enactment of this Act, Congress has passed several 2 bills to protect minors from access to online porno- 3 graphic content, including title V of the Tele- 4 communications Act of 1996 (Public Law 104–104) 5 (commonly known as the ‘‘Communications Decency 6 Act’’), section 231 of the Communications Act of 7 1934 (47 U.S.C. 231) (commonly known as the 8 ‘‘Child Online Protection Act’’), and the Children’s 9 Internet Protection Act (title XVII of division B of 10 Public Law 106–554). 11 (2) With the exception of the Children’s Inter- 12 net Protection Act (title XVII of division B of Public 13 Law 106–554), the Supreme Court of the United 14 States has struck down the previous efforts of Con- 15 gress to shield children from pornographic content, 16 finding that such legislation constituted a ‘‘compel- 17 ling government interest’’ but that it was not the 18 least restrictive means to achieve such interest. In 19 Ashcroft v. ACLU, 542 U.S. 656 (2004), the Court 20 even suggested at the time that ‘‘blocking and fil- 21 tering software’’ could conceivably be a ‘‘primary al- 22 ternative’’ to the requirements passed by Congress. 23 (3) In the nearly 2 decades since the Supreme 24 Court of the United States suggested the use of 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 3 •S 3314 IS ‘‘blocking and filtering software’’, such technology 1 has proven to be ineffective in protecting minors 2 from accessing online pornographic content. The 3 Kaiser Family Foundation has found that filters do 4 not work on 1 in 10 pornography sites accessed in- 5 tentionally and 1 in 3 pornography sites that are 6 accessed unintentionally. Further, it has been proven 7 that children are able to bypass ‘‘blocking and fil- 8 tering’’ software by employing strategic searches or 9 measures to bypass the software completely. 10 (4) Additionally, Pew Research has revealed 11 studies showing that only 39 percent of parents use 12 blocking or filtering software for their minor’s online 13 activities, meaning that 61 percent of children only 14 have restrictions on their internet access when they 15 are at school or at a library. 16 (5) 17 States have now recognized pornography 17 as a public health hazard that leads to a broad 18 range of individual harms, societal harms, and pub- 19 lic health impacts. 20 (6) It is estimated that 80 percent of minors 21 between the ages of 12 to 17 have been exposed to 22 pornography, with 54 percent of teenagers seeking it 23 out. The internet is the most common source for mi- 24 nors to access pornography with pornographic 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 4 •S 3314 IS websites receiving more web traffic in the United 1 States than Twitter, Netflix, Pinterest, and 2 LinkedIn combined. 3 (7) Exposure to online pornography has created 4 unique psychological effects for minors, including 5 anxiety, addiction, low self-esteem, body image dis- 6 orders, an increase in problematic sexual activity at 7 younger ages, and an increased desire among minors 8 to engage in risky sexual behavior. 9 (8) The Supreme Court of the United States 10 has recognized on multiple occasions that Congress 11 has a ‘‘compelling government interest’’ to protect 12 the physical and psychological well-being of minors, 13 which includes shielding them from ‘‘indecent’’ con- 14 tent that may not necessarily be considered ‘‘ob- 15 scene’’ by adult standards. 16 (9) Because ‘‘blocking and filtering software’’ 17 has not produced the results envisioned nearly 2 dec- 18 ades ago, it is necessary for Congress to pursue al- 19 ternative policies to enable the protection of the 20 physical and psychological well-being of minors. 21 (10) The evolution of our technology has now 22 enabled the use of age verification technology that is 23 cost efficient, not unduly burdensome, and can be 24 operated narrowly in a manner that ensures only 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 5 •S 3314 IS adults have access to a website’s online pornographic 1 content. 2 (b) SENSE OF CONGRESS.—It is the sense of Con- 3 gress that— 4 (1) shielding minors from access to online por- 5 nographic content is a compelling government inter- 6 est that protects the physical and psychological well- 7 being of minors; and 8 (2) requiring interactive computer services that 9 are in the business of creating, hosting, or making 10 available pornographic content to enact technological 11 measures that shield minors from accessing porno- 12 graphic content on their platforms is the least re- 13 strictive means for Congress to achieve its compel- 14 ling government interest. 15 SEC. 3. DEFINITIONS. 16 In this Act: 17 (1) CHILD PORNOGRAPHY; MINOR.—The terms 18 ‘‘child pornography’’ and ‘‘minor’’ have the mean- 19 ings given those terms in section 2256 of title 18, 20 United States Code. 21 (2) COMMISSION.—The term ‘‘Commission’’ 22 means the Federal Trade Commission. 23 (3) COVERED PLATFORM.—The term ‘‘covered 24 platform’’— 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 6 •S 3314 IS (A) means an entity— 1 (i) that is an interactive computer 2 service; 3 (ii) that— 4 (I) is engaged in interstate or 5 foreign commerce; or 6 (II) purposefully avails itself of 7 the United States market or a portion 8 thereof; and 9 (iii) for which it is in the regular 10 course of the trade or business of the enti- 11 ty to create, host, or make available con- 12 tent that meets the definition of harmful to 13 minors under paragraph (4) and that is 14 provided by the entity, a user, or other in- 15 formation content provider, with the objec- 16 tive of earning a profit; and 17 (B) includes an entity described in sub- 18 paragraph (A) regardless of whether— 19 (i) the entity earns a profit on the ac- 20 tivities described in subparagraph (A)(iii); 21 or 22 (ii) creating, hosting, or making avail- 23 able content that meets the definition of 24 harmful to minors under paragraph (4) is 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 7 •S 3314 IS the sole source of income or principal busi- 1 ness of the entity. 2 (4) HARMFUL TO MINORS.—The term ‘‘harmful 3 to minors’’, with respect to a picture, image, graphic 4 image file, film, videotape, or other visual depiction, 5 means that the picture, image, graphic image file, 6 film, videotape, or other depiction— 7 (A)(i) taken as a whole and with respect to 8 minors, appeals to the prurient interest in nu- 9 dity, sex, or excretion; 10 (ii) depicts, describes, or represents, in a 11 patently offensive way with respect to what is 12 suitable for minors, an actual or simulated sex- 13 ual act or sexual contact, actual or simulated 14 normal or perverted sexual acts, or lewd exhi- 15 bition of the genitals; and 16 (iii) taken as a whole, lacks serious, lit- 17 erary, artistic, political, or scientific value as to 18 minors; 19 (B) is obscene; or 20 (C) is child pornography. 21 (5) INFORMATION CONTENT PROVIDER; INTER- 22 ACTIVE COMPUTER SERVICE.—The terms ‘‘informa- 23 tion content provider’’ and ‘‘interactive computer 24 service’’ have the meanings given those terms in sec- 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 8 •S 3314 IS tion 230(f) of the Communications Act of 1934 (47 1 U.S.C. 230(f)). 2 (6) SEXUAL ACT; SEXUAL CONTACT.—The 3 terms ‘‘sexual act’’ and ‘‘sexual contact’’ have the 4 meanings given those terms in section 2246 of title 5 18, United States Code. 6 (7) TECHNOLOGY VERIFICATION MEASURE.— 7 The term ‘‘technology verification measure’’ means 8 technology that— 9 (A) employs a system or process to deter- 10 mine whether it is more likely than not that a 11 user of a covered platform is a minor; and 12 (B) prevents access by minors to any con- 13 tent on a covered platform. 14 (8) TECHNOLOGY VERIFICATION MEASURE 15 DATA.—The term ‘‘technology verification measure 16 data’’ means information that— 17 (A) identifies, is linked to, or is reasonably 18 linkable to an individual or a device that identi- 19 fies, is linked to, or is reasonably linkable to an 20 individual; 21 (B) is collected or processed for the pur- 22 pose of fulfilling a request by an individual to 23 access any content on a covered platform; and 24 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 9 •S 3314 IS (C) is collected and processed solely for the 1 purpose of utilizing a technology verification 2 measure and meeting the obligations imposed 3 under this Act. 4 SEC. 4. TECHNOLOGY VERIFICATION MEASURES. 5 (a) COVERED PLATFORM REQUIREMENTS.—Begin- 6 ning on the date that is 1 year after the date of enactment 7 of this Act, a covered platform shall adopt and utilize tech- 8 nology verification measures on the platform to ensure 9 that— 10 (1) users of the covered platform are not mi- 11 nors; and 12 (2) minors are prevented from accessing any 13 content on the covered platform that is harmful to 14 minors. 15 (b) REQUIREMENTS FOR AGE VERIFICATION MEAS- 16 URES.—In order to comply with the requirement of sub- 17 section (a), the technology verification measures adopted 18 and utilized by a covered platform shall do the following: 19 (1) Use a technology verification measure in 20 order to verify a user’s age. 21 (2) Provide that requiring a user to confirm 22 that the user is not a minor shall not be sufficient 23 to satisfy the requirement of subsection (a). 24 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 10 •S 3314 IS (3) Make publicly available the verification 1 process that the covered platform is employing to 2 comply with the requirements under this Act. 3 (4) Subject the Internet Protocol (IP) address- 4 es, including known virtual proxy network IP ad- 5 dresses, of all users of a covered platform to the 6 technology verification measure described in para- 7 graph (1) unless the covered platform determines 8 based on available technology that a user is not lo- 9 cated within the United States. 10 (c) CHOICE OF VERIFICATION MEASURES.—A cov- 11 ered platform may choose the specific technology 12 verification measures to employ for purposes of complying 13 with subsection (a), provided that the technology 14 verification measure employed by the covered platform 15 meets the requirements of subsection (b) and prohibits a 16 minor from accessing the platform or any information on 17 the platform that is obscene, child pornography, or harm- 18 ful to minors. 19 (d) USE OF THIRD PARTIES.—A covered platform 20 may contract with a third party to employ technology 21 verification measures for purposes of complying with sub- 22 section (a) but the use of such a third party shall not re- 23 lieve the covered platform of its obligations under this Act 24 or from liability under this Act. 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 11 •S 3314 IS (e) RULE OF CONSTRUCTION.—Nothing in this sec- 1 tion shall be construed to require a covered platform to 2 submit to the Commission any information that identifies, 3 is linked to, or is reasonably linkable to a user of the cov- 4 ered platform or a device that identifies, is linked to, or 5 is reasonably linkable to a user of the covered platform. 6 (f) TECHNOLOGY VERIFICATION MEASURE DATA SE- 7 CURITY.—A covered platform shall— 8 (1) establish, implement, and maintain reason- 9 able data security to— 10 (A) protect the confidentiality, integrity, 11 and accessibility of technology verification 12 measure data collected by the covered platform 13 or a third party employed by the covered plat- 14 form; and 15 (B) protect such technology verification 16 measure data against unauthorized access; and 17 (2) retain the technology verification measure 18 data for no longer than is reasonably necessary to 19 utilize a technology verification measure or what is 20 minimally necessary to demonstrate compliance with 21 the obligations under this Act. 22 SEC. 5. CONSULTATION REQUIREMENTS. 23 In enforcing the requirements under section 4, the 24 Commission shall consult with the following individuals, 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 12 •S 3314 IS including with respect to the applicable standards and 1 metrics for making a determination on whether a user of 2 a covered platform is not a minor: 3 (1) Individuals with experience in computer 4 science and software engineering. 5 (2) Individuals with experience in— 6 (A) advocating for online child safety; or 7 (B) providing services to minors who have 8 been victimized by online child exploitation. 9 (3) Individuals with experience in consumer 10 protection and online privacy. 11 (4) Individuals who supply technology 12 verification measure products or have expertise in 13 technology verification measure solutions. 14 (5) Individuals with experience in data security 15 and cryptography. 16 SEC. 6. COMMISSION REQUIREMENTS. 17 (a) IN GENERAL.—The Commission shall— 18 (1) conduct regular audits of covered platforms 19 to ensure compliance with the requirements of sec- 20 tion 4; 21 (2) make public the terms and processes for the 22 audits conducted under paragraph (1), including the 23 processes for any third party conducting an audit on 24 behalf of the Commission; 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 13 •S 3314 IS (3) establish a process for each covered plat- 1 form to submit only such documents or other mate- 2 rials as are necessary for the Commission to ensure 3 full compliance with the requirements of section 4 4 when conducting audits under this section; and 5 (4) prescribe the appropriate documents, mate- 6 rials, or other measures required to demonstrate full 7 compliance with the requirements of section 4. 8 (b) GUIDANCE.— 9 (1) IN GENERAL.—Not later than 180 days 10 after the date of enactment of this Act, the Commis- 11 sion shall issue guidance to assist covered platforms 12 in complying with the requirements of section 4. 13 (2) LIMITATIONS ON GUIDANCE.—No guidance 14 issued by the Commission with respect to this Act 15 shall confer any rights on any person, State, or lo- 16 cality, nor shall operate to bind the Commission or 17 any person to the approach recommended in such 18 guidance. In any enforcement action brought pursu- 19 ant to this Act, the Commission shall allege a spe- 20 cific violation of a provision of this Act. The Com- 21 mission may not base an enforcement action on, or 22 execute a consent order based on, practices that are 23 alleged to be inconsistent with any such guidelines, 24 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 14 •S 3314 IS unless the practices allegedly violate a provision of 1 this Act. 2 SEC. 7. ENFORCEMENT. 3 (a) UNFAIR OR DECEPTIVE ACT OR PRACTICE.—A 4 violation of section 4 shall be treated as a violation of a 5 rule defining an unfair or deceptive act or practice under 6 section 18(a)(1)(B) of the Federal Trade Commission Act 7 (15 U.S.C. 57a(a)(1)(B)). 8 (b) POWERS OF THE COMMISSION.— 9 (1) IN GENERAL.—The Commission shall en- 10 force section 4 in the same manner, by the same 11 means, and with the same jurisdiction, powers, and 12 duties as though all applicable terms and provisions 13 of the Federal Trade Commission Act (15 U.S.C. 41 14 et seq.) were incorporated into and made a part of 15 this title. 16 (2) PRIVILEGES AND IMMUNITIES.—Any person 17 who violates section 4 shall be subject to the pen- 18 alties and entitled to the privileges and immunities 19 provided in the Federal Trade Commission Act (15 20 U.S.C. 41 et seq.). 21 (3) AUTHORITY PRESERVED.—Nothing in this 22 Act shall be construed to limit the authority of the 23 Commission under any other provision of law. 24 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 15 •S 3314 IS SEC. 8. GAO REPORT. 1 Not later than 2 years after the date on which cov- 2 ered platforms are required to comply with the require- 3 ment of section 4(a), the Comptroller General of the 4 United States shall submit to Congress a report that in- 5 cludes— 6 (1) an analysis of the effectiveness of the tech- 7 nology verification measures required under such 8 section; 9 (2) an analysis of rates of compliance with such 10 section among covered platforms; 11 (3) an analysis of the data security measures 12 used by covered platforms in the age verification 13 process; 14 (4) an analysis of the behavioral, economic, psy- 15 chological, and societal effects of implementing tech- 16 nology verification measures; 17 (5) recommendations to the Commission on im- 18 proving enforcement of section 4(a), if any; and 19 (6) recommendations to Congress on potential 20 legislative improvements to this Act, if any. 21 SEC. 9. SEVERABILITY CLAUSE. 22 If any provision of this Act, or the application of such 23 a provision to any person or circumstance, is held to be 24 unconstitutional, the remaining provisions of this Act, and 25 VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS 16 •S 3314 IS the application of such provisions to any other person or 1 circumstance, shall not be affected thereby. 2 Æ VerDate Sep 11 2014 01:54 Nov 22, 2023 Jkt 049200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6301 E:\BILLS\S3314.IS S3314 rfrederick on LAP8M3WLY3PROD with BILLS