Sec. 7. Reporting and removal of proscribed visual depictions relating to children; establishment of Child Online Protection Board
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Congress finds the following: Over 40 years ago, the Supreme Court of the United States ruled in New York v. Ferber, 458 U.S. 747 (1982), that child sexual abuse material (referred to in this subsection as CSAM ) is a category of material outside the protections of the First Amendment. The Court emphasized that children depicted in CSAM are harmed twice: first through the abuse and exploitation inherent in the creation of the materials, and then through the continued circulation of the imagery, which inflicts its own emotional and psychological injury.
The Supreme Court reiterated this point 9 years ago in Paroline v. United States, 572 U.S. 434 (2014), when it explained that CSAM victims suffer continuing and grievous harm as a result of [their] knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse [they] endured. In these decisions, the Supreme Court noted that the distribution of child sexual abuse material invades the privacy interests of the victims.
The co-mingling online of CSAM with other, non-explicit depictions of the victims links the victim’s identity with the images of their abuse. This further invades a victim’s privacy and disrupts their sense of security, thwarting what the Supreme Court has described as the individual interest in avoiding disclosure of personal matters. The internet is awash with child sexual abuse material. In 2021, the CyberTipline, operated by the National Center for Missing & Exploited Children to combat online child sexual exploitation, received reports about 39,900,000 images and 44,800,000 videos depicting child sexual abuse.
Since 2017, Project Arachnid, operated by the Canadian Centre for Child Protection, has sent over 26,000,000 notices to online providers about CSAM and other exploitive material found on their platforms. According to the Canadian Centre, some providers are slow to remove the material, or take it down only for it to be reposted again a short time later. This legislation is needed to create an easy-to-use and effective procedure to get CSAM and harmful related imagery quickly taken offline and kept offline to protect children, stop the spread of illegal and harmful content, and thwart the continued invasion of the victims' privacy.
Except as provided in paragraph (2), not later than 1 year after the date of enactment of this Act, the Child Online Protection Board established under subsection (d), shall begin operations, at which point providers shall begin receiving notifications as set forth in subsection (c)(2). The Commission may extend the deadline under paragraph
(1)by not more than 180 days if the Commission provides notice of the extension to the public and to Congress. If a provider receives a complete notification as set forth in paragraph (2)(A) that the provider is hosting a proscribed visual depiction relating to a child, not later than 48 hours after such notification is received by the provider (or, in the case of a small provider, not later than 2 business days after such notification is received by the small provider) the provider shall— remove the proscribed visual depiction relating to a child; and notify the complainant that it has done so; or notify the complainant that the provider— is unable to remove the proscribed visual depiction relating to a child using reasonable means; or has determined that the notification is duplicative under paragraph (2)(C)(i). To be complete under this subsection, a notification must be a written communication to the designated reporting system of the provider (or, if the provider does not have a designated reporting system, a written communication that is served on the provider in accordance with subparagraph (F)) that includes the following: An identification of, and information reasonably sufficient to permit the provider to locate, the alleged proscribed visual depiction relating to a child. Such information may include, at the option of the complainant, a copy of the alleged proscribed visual depiction relating to a child or the uniform resource locator where such proscribed visual depiction is located. The complainant’s name and contact information, to include a mailing address, telephone number, and an electronic mail address, except that, if the complainant is the victim depicted in the alleged proscribed visual depiction relating to a child, the complainant may elect to use an alias, including for purposes of the signed statement described in clause (v), and omit a mailing address. If applicable, a statement indicating that the complainant has previously notified the provider about the alleged proscribed visual depiction relating to a child which may, at the option of the complainant, include a copy of the previous notification. A statement indicating that the complainant has a good faith belief that the information in the notification is accurate. A signed statement under penalty of perjury indicating that the notification is submitted by— the victim depicted in the alleged proscribed visual depiction relating to a child; an authorized representative of the victim depicted in the alleged proscribed visual depiction relating to a child; or a qualified organization. A notification may contain information about more than one proscribed visual depiction relating to a child, but shall only be effective with respect to each proscribed visual depiction relating to a child included in the notification to the extent that the notification includes sufficient information to identify and locate such visual depiction. After a complainant has submitted a notification to a provider, the complainant may submit additional notifications at any time only if the subsequent notifications involve— a different proscribed visual depiction relating to a minor; the same proscribed visual depiction relating to a minor that is in a different location; or recidivist hosting. A provider who receives any additional notifications that do not comply with clause
(i)shall not be required to take any additional action except— as may be required with respect to the original notification; and to notify the complainant as provided in paragraph (1)(B)(ii). If a notification that is submitted to a provider under this subsection does not contain sufficient information under subparagraph (A)(i) to identify or locate the visual depiction that is the subject of the notification but does contain the complainant contact information described in subparagraph (A)(ii), the provider shall, not later than 48 hours after receiving the notification (or, in the case of a small provider, not later than 2 business days after such notification is received by the small provider), contact the complainant via electronic email address to obtain such information. If the provider is able to contact the complainant and obtain sufficient information to identify or locate the visual depiction that is the subject of the notification, the provider shall then proceed as set forth in paragraph (1), except that the applicable timeframes described in such paragraph shall commence on the day the provider receives the information needed to identify or locate the visual depiction. If the provider is able to contact the complainant but does not obtain sufficient information to identify or locate the visual depiction that is the subject of the notification, the provider shall so notify the complainant not later than 48 hours after the provider determines that it is unable to identify or locate the visual depiction (or, in the case of a small provider, not later than 2 business days after the small provider makes such determination), after which no further action by the provider is required and receipt of the notification shall not be considered in determining whether the provider has actual knowledge of any information described in the notification. If the complainant does not respond to the provider's attempt to contact the complainant under this clause within 14 days of such attempt, no further action by the provider is required and receipt of the notification shall not be considered in determining whether the provider has actual knowledge of any information described in the notification. If a notification that is submitted to a provider under this subsection does not contain sufficient information under subparagraph (A)(i) to identify or locate the visual depiction that is the subject of the notification and does not contain the complainant contact information described in subparagraph (A)(ii) (or if the provider is unable to contact the complainant using such information), no further action by the provider is required and receipt of the notification shall not be considered in determining whether the provider has actual knowledge of any information described in the notification. If a provider has a designated reporting system, and a complainant submits a notification under this subsection to the provider without using such system, the provider shall not be considered to have received the notification. If the provider believes that the proscribed visual depiction involving a minor referenced in the notification does not meet the definition of such term as provided in subsection (r)(10), the provider may, not later than 48 hours after receiving the notification (or, in the case of a small provider, not later than 2 business days after such notification is received by the small provider), contact the complainant via electronic mail address to so indicate. If the complainant does not respond to the provider within 14 days after receiving the notification, no further action by the provider is required and receipt of the notification shall not be considered in determining whether the provider has actual knowledge of any information described in the notification. If the complainant responds to the provider within 14 days after receiving the notification, the provider shall then proceed as set forth in paragraph (1), except that the applicable timeframes described in such paragraph shall commence on the day the provider receives the complainant’s response. If a provider does not have a designated reporting system, a complainant may serve the provider with a notification under this subsection to the provider in the same manner that petitions are required to be served under subsection (g)(4). If a provider does not have a designated reporting system and a complainant cannot reasonably serve the provider with a notification as described in clause (i), the complainant may bring a petition under subsection (g)(1) without serving the provider with the notification. If a provider engages in recidivist hosting of a proscribed visual depiction relating to a child, in addition to any action taken under this section, a complainant may submit a report concerning such recidivist hosting to the CyberTipline operated by the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by the National Center for Missing and Exploited Children. A provider that receives a complete notification under this subsection shall preserve the information in such notification in accordance with the requirements of sections 2713 and 2258A(h) of title 18, United States Code. For purposes of this subparagraph, the period for which providers shall be required to preserve information in accordance with such section 2258A(h) may be extended in 90-day increments on written request by the complainant or order of the Board. Except as otherwise provided in subsection (g)(19)(C), for 180 days following receipt of a notification under this subsection, a provider may not disclose the existence of the notification to any person or entity except to an attorney for purposes of obtaining legal advice, the Board, the Commission, a law enforcement agency described in subparagraph (A), (B), or
(C)of section 2258A(g)(3) of title 18, United States Code, the National Center for Missing and Exploited Children, or as necessary to respond to legal process. Nothing in the preceding sentence shall be construed to infringe on the provider’s ability to communicate general information about terms of service violations. There is established in the Federal Trade Commission a Child Online Protection Board, which shall administer and enforce the requirements of subsection
(e)in accordance with this section. The Board shall be composed of 3 full-time Child Online Protection Officers who shall be appointed by the Commission in accordance with paragraph (5)(A). A vacancy on the Board shall not impair the right of the remaining Child Online Protection Officers to exercise the functions and duties of the Board. Not fewer than 2 full-time Child Online Protection Attorneys shall be hired to assist in the administration of the Board. One or more technological advisers may be hired to assist with the handling of digital evidence and consult with the Child Online Protection Officers on matters concerning digital evidence and technological issues. Each Child Online Protection Officer shall be an attorney duly licensed in at least 1 United States jurisdiction who has not fewer than 7 years of legal experience concerning child sexual abuse material and technology-facilitated crimes against children. Two of the Child Online Protection Officers shall have substantial experience in the evaluation, litigation, or adjudication of matters relating to child sexual abuse material or technology-facilitated crimes against children. Each Child Online Protection Attorney shall be an attorney duly licensed in at least 1 United States jurisdiction who has not fewer than 3 years of substantial legal experience concerning child sexual abuse material and technology-facilitated crimes against children. A technological adviser shall have at least one year of specialized experience with digital forensic analysis. In this subparagraph, the term senior level employee of the Federal Government means an employee, other than employee in the Senior Executive Service, the position of whom is classified above GS–15 of the General Schedule. Each Child Online Protection Officer shall be compensated at a rate of pay that is not less than the minimum, and not more than the maximum, rate of pay payable for senior level employees of the Federal Government, including locality pay, as applicable. Each Child Online Protection Attorney shall be compensated at a rate of pay that is not more than the maximum rate of pay payable for level 10 of GS–15 of the General Schedule, including locality pay, as applicable. A technological adviser of the Board shall be compensated at a rate of pay that is not more than the maximum rate of pay payable for level 10 of GS–14 of the General Schedule, including locality pay, as applicable. If a vacancy occurs in the position of Child Online Protection Officer, the Commission shall act expeditiously to appoint an Officer for that position. Subject to subsection (e)(2), the Chair of the Commission or the Commission may sanction or remove a Child Online Protection Officer. The Commission shall provide the Child Online Protection Officers and Child Online Protection Attorneys with necessary administrative support, including technological facilities, to carry out the duties of the Officers and Attorneys under this section. The Department of Justice may provide equipment and guidance on the storage and handling of proscribed visual depictions relating to children. The offices and facilities of the Child Online Protection Officers and Child Online Protection Attorneys shall be located at the headquarters or other office of the Commission. Subject to the provisions of this section and applicable regulations, the functions of the Officers of the Board shall be as follows: To render determinations on petitions that may be brought before the Officers under this section. To ensure that petitions and responses are properly asserted and otherwise appropriate for resolution by the Board. To manage the proceedings before the Officers and render determinations pertaining to the consideration of petitions and responses, including with respect to scheduling, discovery, evidentiary, and other matters. To request, from participants and nonparticipants in a proceeding, the production of information and documents relevant to the resolution of a petition or response. To conduct hearings and conferences. To facilitate the settlement by the parties of petitions and responses. To impose fines as set forth in subsection (g)(24). To provide information to the public concerning the procedures and requirements of the Board. To maintain records of the proceedings before the Officers, certify official records of such proceedings as needed, and, as provided in subsection (g)(19)(A), make the records in such proceedings available to the public. To carry out such other duties as are set forth in this section. When not engaged in performing the duties of the Officers set forth in this section, to perform such other duties as may be assigned by the Chair of the Commission or the Commission. Subject to the provisions of this section and applicable regulations, the functions of the Attorneys of the Board shall be as follows: To provide assistance to the Officers of the Board in the administration of the duties of those Officers under this section. To provide assistance to complainants, providers, and members of the public with respect to the procedures and requirements of the Board. When not engaged in performing the duties of the Attorneys set forth in this section, to perform such other duties as may be assigned by the Commission. The Board may maintain a publicly available directory of service agents designated to receive service of petitions filed with the Board. The Board shall render the determinations of the Board in individual proceedings independently on the basis of the records in the proceedings before it and in accordance with the provisions of this section, judicial precedent, and applicable regulations of the Commission. Notwithstanding any other provision of law or any regulation or policy of the Commission, any performance appraisal of an Officer or Attorney of the Board may not consider the substantive result of any individual determination reached by the Board as a basis for appraisal except to the extent that result may relate to any actual or alleged violation of an ethical standard of conduct. Subject to paragraph (2), the Officers and Attorneys shall, in the administration of their duties, be under the supervision of the Chair of the Commission. An Officer or Attorney of the Board may not undertake any duty that conflicts with the duties of the Officer or Attorney in connection with the Board. An Officer or Attorney of the Board shall recuse himself or herself from participation in any proceeding with respect to which the Officer or Attorney, as the case may be, has reason to believe that he or she has a conflict of interest. Except as may otherwise be permitted by applicable law, any party or interested owner involved in a proceeding before the Board shall refrain from ex parte communications with the Officers of the Board and the Commission relevant to the merits of such proceeding before the Board. Actions of the Officers and the Commission under this section in connection with the rendering of any determination are subject to judicial review as provided under subsection (g)(28). Proceedings of the Board shall be conducted in accordance with this section and regulations established by the Commission under this section, in addition to relevant principles of law. The Board shall maintain records documenting the proceedings before the Board. Proceedings before the Board shall— be conducted at the offices of the Board without the requirement of in-person appearances by parties or others; take place by means of written submissions, hearings, and conferences carried out through internet-based applications and other telecommunications facilities, except that, in cases in which physical or other nontestimonial evidence material to a proceeding cannot be furnished to the Board through available telecommunications facilities, the Board may make alternative arrangements for the submission of such evidence that do not prejudice any party or interested owner; and be conducted and concluded in an expeditious manner without causing undue prejudice to any party or interested owner. A party or interested owner involved in a proceeding before the Board may be, but is not required to be, represented by— an attorney; or a law student who is qualified under applicable law governing representation by law students of parties in legal proceedings and who provides such representation on a pro bono basis. A petition involving a victim under the age of 16 at the time the petition is filed shall be filed by an authorized representative, qualified organization, or a person described in subparagraph (A). A qualified organization may submit a notification to a provider or file a petition on behalf of a victim without regard to whether the qualified organization has contact with the victim or knows the identity, location, or contact information of the victim. A complainant may file a petition to the Board claiming that, as applicable— the complainant submitted a complete notification to a provider concerning a proscribed visual depiction relating to a child, and that— the provider— did not remove the proscribed visual depiction relating to a child within the timeframe required under subsection (c)(1)(A)(i); or incorrectly claimed that— the visual depiction at issue could not be located or removed through reasonable means; the notification was incomplete; or the notification was duplicative under subsection (c)(2)(C)(i); and did not file a timely petition to contest the notification with the Board under paragraph (2); or a provider is hosting a proscribed visual depiction relating to a child, does not have a designated reporting system, and the complainant was unable to serve a notification on the provider under this subsection despite reasonable efforts. As applicable, a petition filed under subparagraph
(A)may also claim that the proscribed visual depiction relating to a child at issue in the petition involves recidivist hosting. A petition under this paragraph shall be considered timely if it is filed within 30 days of the applicable start date, as defined under clause (ii). For purposes of clause (i), the term applicable start date means— in the case of a petition under subparagraph (A)(i) claiming that the visual depiction was not removed or that the provider made an incorrect claim relating to the visual depiction or notification, the day that the provider's option to file a petition has expired under paragraph (2)(B); and in the case of a petition under subparagraph (A)(ii) related to a notification that could not be served, the last day of the 2-week period that begins on the day on which the complainant first attempted to serve a notification on the provider involved. Any petition filed to the Board by the victim or an authorized representative of the victim shall include the victim’s legal name. A petition filed to the Board by a qualified organization may, but is not required to, include the victim's legal name. Any petition containing the victim’s legal name shall be filed under seal. The victim’s legal name shall be redacted from any documents served on the provider and interested owner or made publicly available. A complainant may file a petition under subparagraph (A)(i) claiming that a visual depiction was not removed even if the visual depiction was removed prior to the petition being filed, so long as the petition claims that the visual depiction was not removed within the timeframe specified in subsection (c)(1). If a provider receives a complete notification as described in subsection (c)(2) through its designated reporting system or in accordance with subsection (c)(2)(F)(i), the provider may file a petition to the Board claiming that the provider has a good faith belief that, as applicable— the visual depiction that is the subject of the notification does not constitute a proscribed visual depiction relating to a child; the notification is frivolous or was submitted with an intent to harass the provider or any person; the alleged proscribed visual depiction relating to a child cannot reasonably be located by the provider; for reasons beyond the control of the provider, the provider cannot remove the proscribed visual depiction relating to a child using reasonable means; or the notification was duplicative under subsection (c)(2)(C)(i). Subject to clauses
(ii)and (iii), a petition contesting a notification under this paragraph shall be considered timely if it is filed by a provider not later than 14 days after the day on which the provider receives the notification or the notification is made complete under subsection (c)(2)(D)(i). Subject to clause (iii), if a provider does not have a designated reporting system, a petition contesting a notification under this paragraph shall be considered timely if it is filed by a provider not later than 7 days after the day on which the provider receives the notification or the notification is made complete under subsection (c)(2)(D)(i). In the case of a small provider, each of the timeframes applicable under clauses
(i)and
(ii)shall be increased by 48 hours. If a provider files a petition to the Board contesting a notification solely on the basis of the reason described in subparagraph (A)(i), the provider shall disable public and user access to the alleged proscribed visual depiction relating to a child that is the subject of the notification prior to the submission of the petition and during the pendency of the adjudication, including judicial review as provided in subsection (g)(28). Such petition shall include a statement, under the penalty of perjury, that public and user access to the alleged proscribed visual depiction relating to a child has been disabled. If a provider fails to comply with clause (i), the Board may— dismiss the petition with prejudice; and refer the matter to the Attorney General. If a provider’s petition is dismissed under clause (I)(aa), the complainant may bring a petition under paragraph
(1)as if the provider did not file a petition within the timeframe specified in subparagraph (B). The Board shall prioritize the issuance of a determination concerning any petition subject to this subparagraph to the extent possible without causing undue prejudice to any party or interested owner. In order to commence a proceeding under this section, a petitioning party shall, subject to such additional requirements as may be prescribed in regulations established by the Commission, file a petition with the Board, that includes a statement of claims and material facts in support of each claim in the petition. A petition may set forth more than one claim. A petition shall also include information establishing that it has been filed within the applicable timeframe. Child Online Protection Attorneys may review petitions to assess whether they are complete. The Board may permit a petitioning party to refile a defective petition. The Attorney may assist the petitioning party in making any corrections. The Board may dismiss, with or without prejudice, any petition that fails to comply with subparagraph (A). For purposes of petitions under paragraphs
(1)and (2), the petitioning party shall, at or before the time of filing a petition, serve a copy on the other party. A corporation, partnership, or unincorporated association that is subject to suit in courts of general jurisdiction under a common name shall be served by delivering a copy of the petition to its service agent, if one has been so designated. Service by nondigital means may be any of the following: Personal, including delivery to a responsible person at the office of counsel. By priority mail. By third-party commercial carrier for delivery within 3 days. Service of a paper may be made by sending it by any digital means, including through a provider's designated reporting system. Service by mail or by commercial carrier is complete 3 days after the mailing or delivery to the carrier. Service by digital means is complete on filing or sending, unless the party making service is notified that the paper was not received by the party served. A petition filed under paragraph
(1)or
(2)shall contain— an acknowledgment of service by the person served; proof of service consisting of a statement by the person who made service certifying— the date and manner of service; the names of the persons served; and their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service; or a statement indicating that service could not reasonably be completed. Except as otherwise provided in this subsection, all parties to a petition shall bear their own attorney fees and costs. Documents submitted or relied upon in a proceeding, other than the petition, shall be served in accordance with regulations established by the Commission. In order to effectuate service on a responding party, the petition shall notify the responding party of their right to opt out of the proceeding before the Board, and the consequences of opting out and not opting out, including a prominent statement that by not opting out the respondent— loses the opportunity to have the dispute decided by a court created under article III of the Constitution of the United States; and waives the right to a jury trial regarding the dispute. Within 1 week of completion of service of the petition under paragraph (4), 1 or more Officers of the Board shall hold a conference to explain that the responding party has a right to opt out of the proceeding before the Board, and describe the consequences of opting out and not opting out as described in paragraph (6). A responding party shall have a period of 30 days, beginning on the date of conference, in which to provide written notice of such choice to the petitioning party and the Child Online Protection Board. If the responding party does not submit an opt-out notice to the Child Online Protection Board within that 30-day period, the proceeding shall be deemed an active proceeding and the responding party shall be bound by the determination in the proceeding. If the responding party opts out of the proceeding during that 30-day period, the proceeding shall be dismissed without prejudice. Upon receipt of a complete petition and at the conclusion of the opt out procedure described in paragraph (7), the Board shall issue a schedule for the future conduct of the proceeding. A schedule issued by the Board may be amended by the Board in the interests of justice. One or more Officers of the Board may hold a conference to address case management or discovery issues in a proceeding, which shall be noted upon the record of the proceeding and may be recorded or transcribed. A proceeding of the Board may not include any formal motion practice, except that, subject to applicable regulations and procedures of the Board— the parties to the proceeding and an interested owner may make requests to the Board to address case management and discovery matters, and submit responses thereto; and the Board may request or permit parties and interested owners to make submissions addressing relevant questions of fact or law, or other matters, including matters raised sua sponte by the Officers of the Board, and offer responses thereto. Discovery in a proceeding shall be limited to the production of relevant information and documents, written interrogatories, and written requests for admission, as provided in regulations established by the Commission, except that— upon the request of a party, and for good cause shown, the Board may approve additional relevant discovery, on a limited basis, in particular matters, and may request specific information and documents from parties in the proceeding, consistent with the interests of justice; upon the request of a party or interested owner, and for good cause shown, the Board may issue a protective order to limit the disclosure of documents or testimony that contain confidential information; after providing notice and an opportunity to respond, and upon good cause shown, the Board may apply an adverse inference with respect to disputed facts against a party or interested owner who has failed to timely provide discovery materials in response to a proper request for materials that could be relevant to such facts; and an interested owner shall only produce or receive discovery to the extent it relates to whether the visual depiction at issue constitutes a proscribed visual depiction relating to a child. Any alleged proscribed visual depiction relating to a child received by the Board or the Commission as part of a proceeding shall be filed under seal and shall remain in the care, custody, and control of the Board or the Commission. For purposes of discovery, the Board or Commission shall make the proscribed visual depiction relating to a child reasonably available to the parties and interested owner but shall not provide copies. The privacy protections described in section 3509(d) of title 18, United States Code, shall apply to the Board, Commission, provider, complainant, and interested owner. The responding party may refute any of the claims or factual assertions made by the petitioning party, and may also claim that the petition was not filed in the applicable timeframe or is barred under subsection (h). If a complainant is the petitioning party, a provider may claim in response that the notification was incomplete and could not be made complete under subsection (c)(2)(D)(i). The petitioning party may refute any responses submitted by the responding party. An individual notified under paragraph (19)(C)(ii) may, within 14 days of being so notified, file a motion to join the proceeding for the limited purpose of claiming that the visual depiction at issue does not constitute a proscribed visual depiction relating to a child. The Board shall serve the motion on both parties. Such motion shall include a factual basis and a signed statement, submitted under penalty of perjury, indicating that the individual produced or created the visual depiction at issue. The Board shall dismiss any motion that does not include the signed statement or that was submitted by an individual who did not produce or create the visual depiction at issue. If the motion is granted, the interested owner may also claim that the notification and petition were filed with an intent to harass the interested owner. Any party may refute the claims and factual assertions made by the interested owner. The Board may consider the following types of evidence in a proceeding, and such evidence may be admitted without application of formal rules of evidence: Documentary and other nontestimonial evidence that is relevant to the petitions or responses in the proceeding. Testimonial evidence, submitted under penalty of perjury in written form or in accordance with paragraph (15), limited to statements of the parties and nonexpert witnesses, that is relevant to the petitions or responses in a proceeding, except that, in exceptional cases, expert witness testimony or other types of testimony may be permitted by the Board for good cause shown. Unless waived by all parties, the Board shall conduct a hearing to receive oral presentations on issues of fact or law from parties and witnesses to a proceeding, including oral testimony, subject to the following: Any such hearing shall be attended by not fewer than two of the Officers of the Board. The hearing shall be noted upon the record of the proceeding and, subject to subparagraph (C), may be recorded or transcribed as deemed necessary by the Board. A recording or transcript of the hearing shall be made available to any Officer of the Board who is not in attendance. Upon the written request of a petitioning party, the Board shall dismiss the petition, with or without prejudice. Upon written request of a responding party or interested owner, the Board shall dismiss any responses to the petition, and shall consider all claims and factual assertions in the petition to be true. Subject to paragraph (11)(A)(iii), the Board shall make factual findings based upon a preponderance of the evidence. A determination rendered by the Board in a proceeding shall— be reached by a majority of the Board; be in writing, and include an explanation of the factual and legal basis of the determination; and include a clear statement of all fines, costs, and other relief awarded. An Officer of the Board who dissents from a decision contained in a determination under subparagraph
(A)may append a statement setting forth the grounds for that dissent. Each final determination of the Board shall be made available on a publicly accessible website, except that the final determination shall be redacted to protect confidential information that is the subject of a protective order under paragraph (11)(A)(ii) or information protected pursuant to paragraph (11)(B) and any other information protected from public disclosure under the Federal Trade Commission Act or any other applicable provision of law. All information relating to proceedings of the Board under this section is exempt from disclosure to the public under section 552(b)(3) of title 5, except for determinations, records, and information published under subparagraph (A). Any information that is disclosed under this subparagraph shall have redacted any information that is the subject of a protective order under paragraph (11)(A)(ii) or protected pursuant to paragraph (11)(B). Submission of a petition extends the non-disclosure period under subsection (c)(2)(I) for the pendency of the proceeding. The provider may submit an objection to the Board that nondisclosure is contrary to the interests of justice. The complainant may, but is not required to, respond to the objection. The Board should sustain the objection unless there is reason to believe that the circumstances in section 3486(a)(6)(B) of title 18, United States Code, exist and outweigh the interests of justice. If the Board sustains an objection to the nondisclosure period, the provider or the Board may notify the apparent owner of the visual depiction in question about the proceeding, and include instructions on how the owner may move to join the proceeding under paragraph (13). If applicable, the nondisclosure period expires 120 after the Board’s determination becomes final, except it shall expire immediately upon the Board's determination becoming final if the Board finds that the visual depiction is not a proscribed visual depiction relating to a minor. The interested owner of a visual depiction may not bring any legal action against any party related to the proscribed visual depiction relating to a child until the Board’s determination is final. Once the determination is final, the owner of the visual depiction may pursue any legal relief available under the law, subject to subsections (h), (k), and (l). If the Board finds that service of the petition on the responding party could not reasonably be completed, or the responding party has failed to appear or has ceased participating in a proceeding, as demonstrated by the responding party’s failure, without justifiable cause, to meet one or more deadlines or requirements set forth in the schedule adopted by the Board, the Board may enter a default determination, including the dismissal of any responses asserted by the responding party, as follows and in accordance with such other requirements as the Commission may establish by regulation: The Board shall require the petitioning party to submit relevant evidence and other information in support of the petitioning party’s claims and, upon review of such evidence and any other requested submissions from the petitioning party, shall determine whether the materials so submitted are sufficient to support a finding in favor of the petitioning party under applicable law and, if so, the appropriate relief and damages, if any, to be awarded. If the Board makes an affirmative determination under subparagraph (A), the Board shall prepare a proposed default determination, and shall provide written notice to the responding party at all addresses, including email addresses, reflected in the records of the proceeding before the Board, of the pendency of a default determination by the Board and of the legal significance of such determination. Such notice shall be accompanied by the proposed default determination and shall provide that the responding party has a period of 30 days, beginning on the date of the notice, to submit any evidence or other information in opposition to the proposed default determination. If the responding party responds to the notice provided under subparagraph
(B)within the 30-day period provided in such subparagraph, the Board shall consider responding party’s submissions and, after allowing the petitioning party to address such submissions, maintain, or amend its proposed determination as appropriate, and the resulting determination shall not be a default determination. If the respondent fails to respond to the notice provided under subparagraph (B), the Board shall proceed to issue the default determination. Thereafter, the respondent may only challenge such determination to the extent permitted under paragraph (28). If a petitioning party or interested owner who has joined the proceeding fails to proceed, as demonstrated by the failure, without justifiable cause, to meet one or more deadlines or requirements set forth in the schedule adopted by the Board, the Board may, upon providing written notice to the petitioning party or interested owner and a period of 30 days, beginning on the date of the notice, to respond to the notice, and after considering any such response, issue a determination dismissing the claims made by the petitioning party or interested owner. The Board may order the petitioning party to pay attorneys’ fees and costs under paragraph (26)(B), if appropriate. Thereafter, the petitioning party may only challenge such determination to the extent permitted under paragraph (28). A party or interested owner may, within 30 days after the date on which the Board issues a determination under paragraph (18), submit to the Board a written request for reconsideration of, or an amendment to, such determination if the party or interested owner identifies a clear error of law or fact material to the outcome, or a technical mistake. After providing the other parties an opportunity to address such request, the Board shall either deny the request or issue an amended determination. If the Board denies a party or interested owner a request for reconsideration of a determination under paragraph (22), the party or interested owner may, within 30 days after the date of such denial, request review of the determination by the Commission in accordance with regulations established by the Commission. After providing the other party or interested owner an opportunity to address the request, the Commission shall either deny the request for review, or remand the proceeding to the Board for reconsideration of issues specified in the remand and for issuance of an amended determination. Such amended determination shall not be subject to further consideration or review, other than under paragraph (28). If the Board grants a complainant’s petition filed under this section, notwithstanding any other law, the Board shall— order the provider to immediately remove the proscribed visual depiction relating to a child, and to permanently delete all copies of the visual depiction known to and under the control of the provider unless the Board orders the provider to preserve the visual depiction; impose a fine of $50,000 per proscribed visual depiction relating to a child covered by the determination, but if the Board finds that— the provider removed the proscribed visual depiction relating to a child after the period set forth in subsection (c)(1)(A)(i), but before the complainant filed a petition, such fine shall be $25,000; the provider has engaged in recidivist hosting for the first time with respect to the proscribed visual depiction relating to a child in question, such fine shall be $100,000 per proscribed visual depiction relating to a child; or the provider has engaged in recidivist hosting of the proscribed visual depiction relating to a child in question 2 or more times, such fine shall be $200,000 per proscribed visual depiction relating to a child; order the provider to pay reasonable costs to the complainant; and refer any matters involving intentional or willful conduct by a provider with respect to a proscribed visual depiction relating to a child, or recidivist hosting, to the Attorney General for prosecution under any applicable laws. Notwithstanding any other law, the Board shall direct a provider to promptly pay fines and costs imposed under subparagraph
(A)as follows: If the petition was filed by a victim, such fine and costs shall be paid to the victim. If the petition was filed by an authorized representative of a victim— 30 percent of such fine shall be paid to the authorized representative and 70 percent of such fine paid to the victim; and costs shall be paid to the authorized representative. If the petition was filed by a qualified organization— the fine shall be paid to the Child Pornography Victims Reserve as provided in section 2259B of title 18, United States Code; and costs shall be paid to the qualified organization. If the Board denies a provider’s petition to contest a notification filed under paragraph (2), it shall order the provider to immediately remove the proscribed visual depiction relating to a child, and to permanently delete all copies of the visual depiction known to and under the control of the provider unless the Board orders the provider to preserve the visual depiction. If a provider does not remove and, if applicable, permanently delete a proscribed visual depiction relating to a child within 48 hours of the Board issuing a determination under subparagraph (A), or not later than 2 business days of the Board issuing a determination under subparagraph
(A)concerning a small provider, the Board shall refer the matter to the Attorney General for prosecution under any applicable laws. If the Board finds that a provider filed a petition under paragraph
(2)for a harassing or improper purpose or without reasonable basis in law or fact, the Board shall order the provider to pay the reasonable costs of the complainant. If the Board grants a provider’s petition filed under paragraph
(2)or if the Board denies a petition filed by the complainant under paragraph (1), the provider may restore access to any visual depiction that was at issue in the proceeding. If, in granting or denying a petition as described in subparagraph (A), the Board finds that the notification contested in the petition could not be made complete under subsection (c)(2)(D), is frivolous, or is duplicative under subsection (c)(2)(C)(i), the Board may order the complainant to pay costs to the provider and any interested owner, which shall not exceed a total of $10,000, or, if the Board finds that the complainant filed the notification with an intent to harass the provider or any person, a total of $15,000. Whenever any provider or complainant fails to comply with a final determination of the Board issued under paragraph (18), the Department of Justice may commence a civil action in a district court of the United States to enforce compliance with such determination. Nothing in this section shall be construed to limit the authority of the Commission or Department of Justice under any other provision of law. Not later than 45 days after the date on which the Board issues a determination or amended determination in a proceeding, or not later than 45 days after the date on which the Board completes any process of reconsideration or the Commission completes a review of the determination, whichever occurs later, a party may seek an order from a district court, located where the provider or complainant conducts business or resides, vacating, modifying, or correcting the determination of the Board in the following cases: If the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct. If the Board exceeded its authority or failed to render a determination concerning the subject matter at issue. In the case of a default determination or determination based on a failure to prosecute, if it is established that the default or failure was due to excusable neglect. Notice of the application to challenge a determination of the Board shall be provided to all parties to the proceeding before the Board, in accordance with the procedures applicable to service of a motion in the court where the application is made. For purposes of an application under this paragraph, any judge who is authorized to issue an order to stay the proceedings in an any other action brought in the same court may issue an order, to be served with the notice of application, staying proceedings to enforce the award while the challenge is pending. A determination of the Board shall be final on the date that all opportunities for a party or interested owner to seek reconsideration or review of a determination under paragraph
(22)or (23), or for a party to challenge the determination under paragraph (28), have expired or are exhausted. The issuance of a final determination by the Board shall preclude the filing by any party of any subsequent petition that is based on the notification at issue in the final determination. This paragraph shall not limit the ability of any party to file a subsequent petition based on any other notification. Except as provided in paragraph (1), the issuance of a final determination by the Board, including a default determination or determination based on a failure to prosecute, shall not preclude relitigation of any factual matter in any subsequent legal action or proceeding before any court, tribunal, or the Board, and any determination of the Board may not be cited or relied upon as legal precedent in any such legal action or proceeding except that— no party or interested owner may relitigate any allegation, factual claim, or response that was properly asserted and considered by the Board in any subsequent proceeding before the Board involving the same parties or interested owner and the same proscribed visual depiction relating to a minor; and a finding by the Board that a visual depiction constitutes a proscribed visual depiction relating to a child may not be relitigated in any civil proceeding brought by an interested owner. A submission or statement of a party, interested owner, or witness made in connection with a proceeding before the Board, including a proceeding that is dismissed, may not serve as the basis of any action or proceeding before any court or tribunal except for any legal action related to perjury or for conduct described in subsection (k)(2). A statement of a party, interested owner, or witness may be received as evidence, in accordance with applicable rules, in any subsequent legal action or proceeding before any court, tribunal, or the Board. Except as provided in paragraph (1), the failure or inability to assert any allegation, factual claim, or response in a proceeding before the Board shall not preclude the assertion of that response in any subsequent legal action or proceeding before any court, tribunal, or the Board. The Commission may issue regulations in accordance with section 553 of title 5, United States Code, to implement this section. Not later than 3 years after the date on which Child Online Protection Board issues the first determination under this section, the Commission shall conduct, and report to Congress on, a study that addresses the following: The use and efficacy of the Child Online Protection Board in expediting the removal of proscribed visual depictions relating to children and resolving disputes concerning said visual depictions, including the number of proceedings the Child Online Protection Board could reasonably administer with current allocated resources. Whether adjustments to the authority of the Child Online Protection Board are necessary or advisable, including with respect to permissible claims, responses, fines, costs, and joinder by interested parties; Whether the Child Online Protection Board should be permitted to expire, be extended, or be expanded. Such other matters as the Commission believes may be pertinent concerning the Child Online Protection Board. In conducting the study and completing the report required under paragraph (1), the Commission shall, to the extent feasible, consult with complainants, victims, and providers to include their views on the matters addressed in the study and report. Except as provided in paragraph (2), a civil claim or criminal charge against the Board, a provider, a complainant, interested owner, or representative under subsection (f)(4), for distributing, receiving, accessing, or possessing a proscribed visual depiction relating to a child for the sole and exclusive purpose of complying with the requirements of this section, or for the sole and exclusive purpose of seeking or providing legal advice in order to comply with this section, may not be brought in any Federal or State court. Paragraph
(1)shall not apply to a claim against the Board, a provider, a complainant, interested owner, or representative under subsection (f)(4)— for any conduct unrelated to compliance with the requirements of this section; if the Board, provider, complainant, interested owner, or representative under subsection (f)(4) (as applicable)— engaged in intentional misconduct; or acted, or failed to act— with actual malice; or with reckless disregard to a substantial risk of causing physical injury without legal justification; or in the case of a claim against a complainant, if the complainant falsely claims to be a victim, an authorized representative of a victim, or a qualified organization. The Board, a provider, a complainant, an interested owner, or a representative under subsection (f)(4) shall— minimize the number of individuals that are provided access to any alleged, contested, or actual proscribed visual depictions relating to a child under this section; ensure that any alleged, contested, or actual proscribed visual depictions relating to a child are transmitted and stored in a secure manner and are not distributed to or accessed by any individual other than as needed to implement this section; and ensure that all copies of any proscribed visual depictions relating to a child are permanently deleted upon a request from the Board, Commission, or the Federal Bureau of Investigation. A provider shall not be liable to any person for any claim based on the provider’s good faith removal of any alleged proscribed visual depiction relating to a child pursuant to a notification under this section, regardless of whether the visual depiction is found to be a proscribed visual depiction relating to a child by the Board. This Act shall not be construed to impair, supersede, or limit a provision of Federal, State, or Tribal law. Nothing in this Act shall prohibit a State or Tribal government from adopting and enforcing a provision of law governing child sex abuse material that is at least as protective of the rights of a victim as this section. Nothing in this Act affects discovery, a subpoena or any other court order, or any other judicial process otherwise in accordance with Federal or State law. Nothing in this section shall be construed to relieve a provider from any obligation imposed on the provider under section 2258A of title 18, United States Code. There are authorized to be appropriated such sums as may be necessary to pay the costs incurred by the Commission under this section, including the costs of establishing and maintaining the Board and its facilities. Except for subsections (a), (h), (k), (l), (m), (n), (o), and (r), this section shall expire 5 years after the date on which the Child Online Protection Board issues its first determination under this section. In this section: The term Board means the Child Online Protection Board established under subsection (e). The term child sexual abuse material has the meaning provided in section 2256(8) of title 18, United States Code. The term Commission means the Federal Trade Commission. The term complainant means— the victim appearing in the proscribed visual depiction relating to a child; an authorized representative of the victim appearing in the proscribed visual depiction relating to a child; or a qualified organization. The term designated reporting system means a digital means of submitting a notification to a provider under this subsection that is publicly and prominently available, easily accessible, and easy to use. The term host means to store or make a visual depiction available or accessible to the public or any users through digital means or on a system or network controlled or operated by or for a provider. The term identifiable person means a person who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. The term interested owner means an individual who has joined a proceeding before the Board under subsection (g)(13). The term party means the complainant or provider. The term proscribed visual depiction relating to a child means child sexual abuse material or a related exploitative visual depiction. The term provider means a provider of an interactive computer service, as that term is defined in section 230 of the Communications Act of 1934 ( 47 U.S.C. 230 ), and for purposes of subsections
(k)and (l), includes any director, officer, employee, or agent of such provider. The term qualified organization means an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 that is exempt from tax under section 501(a) of that Code that works to address child sexual abuse material and to support victims of child sexual abuse material. The term recidivist hosting means, with respect to a provider, that the provider removes a proscribed visual depiction relating to a child pursuant to a notification or determination under this subsection, and then subsequently hosts a visual depiction that has the same hash value or other technical identifier as the visual depiction that had been so removed. The term related exploitive visual depiction means a visual depiction of an identifiable person of any age where the visual depiction does not constitute child sexual abuse material but is published and associated with child sexual abuse material depicting that person. The term small provider means a provider that, for the most recent calendar year, averaged less than 10,000,000 active users on a monthly basis in the United States. The term victim means an individual of any age who is depicted in child sexual abuse material while under 18 years of age. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by a court, may assume the victim's rights to submit a notification or file a petition under this section, but in no event shall an individual who produced or conspired to produce the child sexual abuse material depicting the victim be named as such representative or guardian. The term visual depiction has the meaning provided in section 2256(5) of title 18, United States Code.
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- 458 U.S. 747
- 572 U.S. 434
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Sec. 7
Reporting and removal of proscribed visual depictions relating to children; establishment of Child Online Protection Board
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