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S. 3170 (115th): CyberTipline Modernization Act of 2018


The text of the bill below is as of Sep 27, 2018 (Passed the Senate).


115th CONGRESS

2d Session

S. 3170

IN THE SENATE OF THE UNITED STATES

AN ACT

To amend title 18, United States Code, to make certain changes to the reporting requirement of certain service providers regarding child sexual exploitation visual depictions, and for other purposes.

1.

Short title

This Act may be cited as the CyberTipline Modernization Act of 2018.

2.

Alterations to reporting requirements for electronic service providers and remote computing service providers

Section 2258A of title 18, United States Code, is amended—

(1)

in the heading, by striking electronic communication service providers and remote computing service providers and inserting providers;

(2)

in subsection (a)—

(A)

by amending paragraph (1) to read as follows:

(1)

In general

(A)

Duty

In order to reduce the proliferation of online child sexual exploitation and to prevent the online sexual exploitation of children, a provider—

(i)

shall, as soon as reasonably possible after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(A), take the actions described in subparagraph (B); and

(ii)

may, after obtaining actual knowledge of any facts or circumstances described in paragraph (2)(B), take the actions described in subparagraph (B).

(B)

Actions described

The actions described in this subparagraph are—

(i)

providing to the CyberTipline of NCMEC, or any successor to the Cy­ber­Tip­line operated by NCMEC, the mailing address, telephone number, facsimile number, electronic mailing address of, and individual point of contact for, such provider; and

(ii)

making a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by NCMEC.

; and

(B)

by amending paragraph (2) to read as follows:

(2)

Facts or circumstances

(A)

Apparent violations

The facts or circumstances described in this subparagraph are any facts or circumstances from which there is an apparent violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography.

(B)

Imminent violations

The facts or circumstances described in this subparagraph are any facts or circumstances which indicate a violation of any of the sections described in subparagraph (A) involving child pornography may be planned or imminent.

;

(3)

in subsection (b)—

(A)

in the matter preceding paragraph (1)—

(i)

by striking To the extent and inserting In an effort to prevent the future sexual victimization of children, and to the extent;

(ii)

by striking an electronic communication service provider or a remote computing service provider and inserting a provider; and

(iii)

by striking may include and inserting may, at the sole discretion of the provider, include;

(B)

in paragraph (1)—

(i)

by inserting or plans to violate after who appears to have violated; and

(ii)

by inserting payment information (excluding personally identifiable information), after uniform resource locator,;

(C)

in paragraph (2)—

(i)

by striking an electronic communication service or a remote computing service and inserting a provider;

(ii)

by striking apparent child pornography each place it appears and inserting content relating to the report; and

(iii)

by striking the electronic communication service provider or remote computing service provider and inserting the provider;

(D)

by amending paragraph (3) to read as follows:

(3)

Geographic location information

Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified address, or, if not reasonably available, at least one form of geographic identifying information, including area code or zip code, provided by the customer or subscriber, or stored or obtained by the provider.

;

(E)

in paragraph (4)—

(i)

in the heading by striking Images and inserting Visual depictions;

(ii)

by striking image and inserting visual depiction; and

(iii)

by inserting or other content after apparent child pornography; and

(F)

in paragraph (5)—

(i)

by striking image and inserting visual depiction;

(ii)

by inserting or other content after apparent child pornography; and

(iii)

by striking images and inserting visual depictions;

(4)

by amending subsection (c) to read as follows:

(c)

Forwarding of report to law enforcement

Pursuant to its clearinghouse role as a private, nonprofit organization, and at the conclusion of its review in furtherance of its nonprofit mission, NCMEC shall make available each report made under subsection (a)(1) to one or more of the following law enforcement agencies:

(1)

Any Federal law enforcement agency that is involved in the investigation of child sexual exploitation, kidnapping, or enticement crimes.

(2)

Any State or local law enforcement agency that is involved in the investigation of child sexual exploitation.

(3)

A foreign law enforcement agency designated by the Attorney General under subsection (d)(3) or a foreign law enforcement agency that has an established relationship with the Federal Bureau of Investigation, Immigration and Customs Enforcement, or INTERPOL, and is involved in the investigation of child sexual exploitation, kidnapping, or enticement crimes.

;

(5)

in subsection (d)—

(A)

in paragraph (2), by striking shall designate promptly the and inserting may designate a;

(B)

in paragraph (3)—

(i)

in the matter preceding subparagraph (A), by striking shall promptly and inserting may; and

(ii)

in subparagraph (A), by striking designate the and inserting designate;

(C)

in paragraph (4)—

(i)

by striking shall and inserting may;

(ii)

by striking the National Center for Missing and Exploited Children and inserting NCMEC; and

(iii)

by striking electronic communication service providers, remote computing service providers and inserting providers;

(D)

by striking paragraph (5);

(E)

by redesignating paragraph (6) as paragraph (5); and

(F)

by amending paragraph (5), as so redesignated, to read as follows:

(5)

Notification to providers

(A)

In general

NCMEC may notify a provider of the information described in subparagraph (B), if—

(i)

a provider notifies NCMEC that the provider is making a report under this section as the result of a request by a foreign law enforcement agency; and

(ii)

NCMEC forwards the report described in clause (i) to—

(I)

the requesting foreign law enforcement agency; or

(II)

another agency in the same country designated by the Attorney General under paragraph (3) or that has an established relationship with the Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, or INTERPOL and is involved in the investigation of child sexual exploitation, kidnapping, or enticement crimes.

(B)

Information described

The information described in this subparagraph is—

(i)

the identity of the foreign law enforcement agency to which the report was forwarded; and

(ii)

the date on which the report was forwarded.

(C)

Notification of inability to forward report

If a provider notifies NCMEC that the provider is making a report under this section as the result of a request by a foreign law enforcement agency and NCMEC is unable to forward the report as described in subparagraph (A)(ii), NCMEC shall notify the provider that NCMEC was unable to forward the report.

;

(6)

in subsection (e), by striking An electronic communication service provider or remote computing service provider and inserting A provider;

(7)

in subsection (f)—

(A)

in the matter preceding paragraph (1), by striking an electronic communication service provider or a remote computing service provider and inserting a provider; and

(B)

in paragraph (3), by striking seek and inserting search, screen, or scan for;

(8)

in subsection (g)—

(A)

in paragraph (2)—

(i)

in subparagraph (A)(vi), by striking an electronic communication service provider or remote computing service provider and inserting a provider; and

(ii)

by amending subparagraph (B) to read as follows:

(B)

Limitation

Nothing in subparagraph (A)(vi) authorizes a law enforcement agency to provide visual depictions of apparent child pornography to a provider.

;

(B)

in paragraph (3)—

(i)

in the paragraph heading, by striking the National Center for Missing and Exploited Children and inserting NCMEC;

(ii)

in the matter preceding subparagraph (A)—

(I)

by striking The National Center for Missing and Exploited Children and inserting NCMEC;

(II)

by inserting after may disclose the following: by mail, electronic transmission, or other reasonable means,; and

(III)

by striking only and inserting only to;

(iii)

in subparagraph (A)—

(I)

by striking to any Federal law enforcement agency and inserting any Federal law enforcement agency; and

(II)

by inserting before the semicolon at the end the following: or that is involved in the investigation of child sexual exploitation, kidnapping, or enticement crimes;

(iv)

in subparagraph (B)—

(I)

by striking to any State and inserting any State; and

(II)

by striking child pornography, child exploitation and inserting child sexual exploitation;

(v)

in subparagraph (C)—

(I)

by striking to any foreign law enforcement agency and inserting any foreign law enforcement agency; and

(II)

by striking ; and and inserting or that has an established relationship with the Federal Bureau of Investigation, Immigration and Customs Enforcement, or INTERPOL, and is involved in the investigation of child sexual exploitation, kidnapping, or enticement crimes;;

(vi)

in subparagraph (D)—

(I)

by striking to an electronic communication service provider or remote computing service provider and inserting a provider; and

(II)

by striking the period at the end and inserting ; and; and

(vii)

by adding after subparagraph (D) the following:

(E)

respond to legal process, as necessary.

; and

(C)

by adding at the end the following:

(4)

Permitted disclosure by a provider

A provider that submits a report under subsection (a)(1) may disclose by mail, electronic transmission, or other reasonable means, information, including visual depictions contained in the report, in a manner consistent with permitted disclosures under paragraphs (3) through (8) of section 2702(b) only to a law enforcement agency described in subparagraph (A), (B), or (C) of paragraph (3), to NCMEC, or as necessary to respond to legal process.

; and

(9)

in subsection (h)—

(A)

in paragraph (1)—

(i)

by striking the notification to an electronic communication service provider or a remote computing service provider by the CyberTipline of receipt of a report and inserting a completed submission by a provider of a report to the Cy­ber­Tip­line; and

(ii)

by striking , as if such request was made pursuant to section 2703(f) and inserting the contents provided in the report for 90 days after the submission to the CyberTipline;

(B)

by striking paragraph (2);

(C)

by redesignating paragraphs (3) through (5) as paragraphs (2) through (4), respectively;

(D)

in paragraph (2), as so redesignated—

(i)

in the heading, by striking images and inserting content;

(ii)

by striking an electronic communication service provider or a remote computing service and inserting a provider;

(iii)

by striking images and inserting visual depictions; and

(iv)

by striking commingled or interspersed among the images of apparent child pornography within a particular communication or user created folder or directory and inserting reasonably accessible and may provide context or additional information about the reported material or person; and

(E)

in paragraph (3), as so redesignated, by striking An electronic communication service or remote computing service and inserting A provider.

3.

Limited liability for providers or domain name registrars

Section 2258B of title 18, United States Code, is amended—

(1)

in the heading—

(A)

by striking electronic communication service providers, remote computing service providers, and inserting providers; and

(B)

by striking registrar and inserting registrars;

(2)

in subsection (a)—

(A)

by striking an electronic communication service provider, a remote computing service provider, and inserting a provider; and

(B)

by striking such electronic communication service provider, remote computing service provider, each place it appears and inserting such provider;

(3)

in subsection (b), by striking electronic communication service provider, remote computing service provider, each place it appears and inserting provider; and

(4)

in subsection (c)—

(A)

by striking image each place it appears and inserting visual depiction; and

(B)

in the matter preceding paragraph (1), by striking An electronic communication service provider, a remote computing service provider, and inserting A provider.

4.

Use to combat child pornography of technical elements relating to reports made to CyberTipline

Section 2258C of title 18, United States Code, is amended—

(1)

in the heading, by striking to images reported to and inserting to reports made to;

(2)

in subsection (a)—

(A)

in paragraph (1)—

(i)

by striking The National Center for Missing and Exploited Children and inserting NCMEC;

(ii)

by striking apparent child pornography image of an identified child and inserting CyberTipline report;

(iii)

by striking an electronic communication service provider or a remote computing service provider and inserting a provider;

(iv)

by striking that electronic communication service provider or remote computing service provider and inserting that provider; and

(v)

by striking further transmission of images and inserting online sexual exploitation of children;

(B)

in paragraph (2), by striking specific image, Internet location of images, and other technological elements that can be used to identify and stop the transmission of child pornography and inserting specific visual depiction, including an Internet location and any other elements provided in a CyberTipline report that can be used to identify, prevent, curtail, or stop the transmission of child pornography and prevent the online sexual exploitation of children; and

(C)

in paragraph (3), by striking actual images and inserting actual visual depictions of apparent child pornography;

(3)

in subsection (b)—

(A)

in the heading, by striking electronic communication service providers and remote computing service providers and inserting providers;

(B)

by striking electronic communication service provider or remote computing service provider each place it appears and inserting provider;

(C)

by striking apparent child pornography image of an identified child from the National Center for Missing and Exploited Children and inserting CyberTipline report from NCMEC;

(D)

by striking shall not relieve that and inserting shall not relieve the; and

(E)

by striking its reporting obligations and inserting reporting;

(4)

in subsection (c)—

(A)

by striking electronic communication service providers or remote computing service providers and inserting providers;

(B)

by striking apparent child pornography image of an identified child from the National Center for Missing and Exploited Children and inserting CyberTipline report from NCMEC; and

(C)

by striking further transmission of the images and inserting online sexual exploitation of children;

(5)

in subsection (d)—

(A)

by striking The National Center for Missing and Exploited Children shall and inserting NCMEC may;

(B)

by inserting after local law enforcement the following: , and to foreign law enforcement agencies described in section 2258A(c)(3),;

(C)

by striking investigation of child pornography and inserting investigation of child sexual exploitation;

(D)

by striking image of an identified child and inserting visual depiction; and

(E)

by striking reported to the National Center for Missing and Exploited Children and inserting reported to the CyberTipline; and

(6)

in subsection (e)—

(A)

by inserting before Federal the following: foreign,;

(B)

by striking image of an identified child from the National Center for Missing and Exploited Children under section (d) and inserting visual depiction from NCMEC under subsection (d);

(C)

by striking child pornography crimes and inserting child sexual exploitation crimes,; and

(D)

by inserting before the period at the end the following: and prevent future sexual victimization of children.

5.

Limited liability for NCMEC

Section 2258D of title 18, United States Code, is amended—

(1)

in the heading, by striking the National Center for Missing and Exploited Children and inserting NCMEC;

(2)

in subsection (a)—

(A)

by striking Except as provided and inserting Pursuant to its clearinghouse role as a private, nonprofit organization and its mission to help find missing children, reduce online sexual exploitation of children and prevent future victimization, and except as provided;

(B)

by striking the National Center for Missing and Exploited Children and inserting NCMEC;

(C)

by striking (42 U.S.C. 5773) and inserting (34 U.S.C. 11293);

(D)

by striking such center each place it appears and inserting NCMEC; and

(E)

by striking from the effort and inserting from the efforts;

(3)

in subsection (b)—

(A)

by striking the National Center for Missing and Exploited Children and inserting NCMEC;

(B)

by striking such center and inserting NCMEC; and

(C)

by striking (42 U.S.C. 5773) and inserting (34 U.S.C. 11293); and

(4)

in subsection (d)—

(A)

in the matter preceding paragraph (1), by striking The National Center for Missing and Exploited Children and inserting NCMEC; and

(B)

by striking image each place it appears and inserting visual depiction.

6.

Definitions

Section 2258E of title 18, United States Code, is amended—

(1)

in the matter preceding paragraph (1), by striking 2258D and inserting 2258E;

(2)

in paragraph (5), by striking and at the end;

(3)

by redesignating paragraph (6) as paragraph (8); and

(4)

by inserting after paragraph (5) the following:

(6)

the term provider means an electronic communication service provider or remote computing service;

(7)

the term NCMEC means the National Center for Missing & Exploited Children; and

.

7.

Technical and conforming amendment

The table of sections for chapter 110 of title 18, United States Code, is amended by striking the items relating to sections 2258A, 2258B, 2258C, and 2258D and inserting the following:

2258A. Reporting requirements of providers.

2258B. Limited liability for providers or domain name registrars.

2258C. Use to combat child pornography of technical elements relating to reports made to the CyberTipline.

2258D. Limited liability for NCMEC.

.

Passed the Senate September 27, 2018.

Secretary