§ 223 — Obscene Or Harassing Telephone Calls In The District Of Columbia Or In Interstate Or Foreign Communications

(a) Whoever— (1) in interstate or foreign communications— (A) by means of a telecommunications device knowingly— (i) makes, creates, or solicits, and (ii) initiates the transmission of, (B) by means of a telecommunications device knowingly— (i) makes, creates, or solicits, and (ii) initiates the transmission of, (C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to abuse, threaten, or harass any specific person; (D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or (E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any specific person; or (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, (1) Whoever knowingly— (A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), (2) Whoever knowingly— (A) within the United States, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both. (3) It is a defense to prosecution under paragraph (2) of this subsection that the defendant restricted access to the prohibited communication to persons 18 years of age or older in accordance with subsection (c) of this section and with such procedures as the Commission may prescribe by regulation. (4) In addition to the penalties under paragraph (1), whoever, within the United States, intentionally violates paragraph (1) or (2) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (A) In addition to the penalties under paragraphs (1), (2), and (5), whoever, within the United States, violates paragraph (1) or (2) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (B) A fine under this paragraph may be assessed either— (i) by a court, pursuant to civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or (ii) by the Commission after appropriate administrative proceedings. (6) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1) or (2). An injunction may be granted in accordance with the Federal Rules of Civil Procedure. (1) A common carrier within the District of Columbia or within any State, or in interstate or foreign commerce, shall not, to the extent technically feasible, provide access to a communication specified in subsection (b) from the telephone of any subscriber who has not previously requested in writing the carrier to provide access to such communication if the carrier collects from subscribers an identifiable charge for such communication that the carrier remits, in whole or in part, to the provider of such communication. (2) Except as provided in paragraph (3), no cause of action may be brought in any court or administrative agency against any common carrier, or any of its affiliates, including their officers, directors, employees, agents, or authorized representatives on account of— (A) any action which the carrier demonstrates was taken in good faith to restrict access pursuant to paragraph (1) of this subsection; or (B) any access permitted— (i) in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b), or (ii) because a specific representation by the provider did not allow the carrier, acting in good faith, a sufficient period to restrict access to communications described in subsection (b). (3) Notwithstanding paragraph (2) of this subsection, a provider of communications services to which subscribers are denied access pursuant to paragraph (1) of this subsection may bring an action for a declaratory judgment or similar action in a court. Any such action shall be limited to the question of whether the communications which the provider seeks to provide fall within the category of communications to which the carrier will provide access only to subscribers who have previously requested such access. (d) Whoever— (1) in interstate or foreign communications knowingly— (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, (e) In addition to any other defenses available by law: (1) No person shall be held to have violated subsection (a), (d), or (h) solely for providing access or connection to or from a facility, system, or network not under that person’s control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication. (2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications. (3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person. (4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee’s or agent’s conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct. (5) It is a defense to a prosecution under subsection (a)(1)(B) or (d), or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person— (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. (6) The Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d). Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. The Commission shall not endorse specific products relating to such measures. The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d). Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers. (1) No cause of action may be brought in any court or administrative agency against any person on account of any activity that is not in violation of any law punishable by criminal or civil penalty, and that the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (2) No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section: Provided, however, That nothing herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements, so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section. (g) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under subsection (a) or (d) shall be construed to affect or limit the application or enforcement of any other Federal law. (1) In this subsection: (A) The term “consent” means an affirmative, conscious, and voluntary authorization made by an individual free from force, fraud, duress, misrepresentation, or coercion. (B) The term “digital forgery” means any intimate visual depiction of an identifiable individual created through the use of software, machine learning, artificial intelligence, or any other computer-generated or technological means, including by adapting, modifying, manipulating, or altering an authentic visual depiction, that, when viewed as a whole by a reasonable person, is indistinguishable from an authentic visual depiction of the individual. (C) The term “identifiable individual” means an individual— (i) who appears in whole or in part in an intimate visual depiction; and (ii) whose face, likeness, or other distinguishing characteristic (including a unique birthmark or other recognizable feature) is displayed in connection with such intimate visual depiction. (D) The term “interactive computer service” has the meaning given the term in section 230 of this title. (E) The term “intimate visual depiction” has the meaning given such term in section 6851 of title 15. (F) The term “minor” means any individual under the age of 18 years. (A) Except as provided in subparagraph (C), it shall be unlawful for any person, in interstate or foreign commerce, to use an interactive computer service to knowingly publish an intimate visual depiction of an identifiable individual who is not a minor if— (i) the intimate visual depiction was obtained or created under circumstances in which the person knew or reasonably should have known the identifiable individual had a reasonable expectation of privacy; (ii) what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting; (iii) what is depicted is not a matter of public concern; and (iv) publication of the intimate visual depiction— (I) is intended to cause harm; or (II) causes harm, including psychological, financial, or reputational harm, to the identifiable individual. (B) Except as provided in subparagraph (C), it shall be unlawful for any person, in interstate or foreign commerce, to use an interactive computer service to knowingly publish an intimate visual depiction of an identifiable individual who is a minor with intent to— (i) abuse, humiliate, harass, or degrade the minor; or (ii) arouse or gratify the sexual desire of any person. (C) Subparagraphs (A) and (B) shall not apply to— (i) a lawfully authorized investigative, protective, or intelligence activity of— (I) a law enforcement agency of the United States, a State, or a political subdivision of a State; or (II) an intelligence agency of the United States; (ii) a disclosure made reasonably and in good faith— (I) to a law enforcement officer or agency; (II) as part of a document production or filing associated with a legal proceeding; (III) as part of medical education, diagnosis, or treatment or for a legitimate medical, scientific, or education purpose; (IV) in the reporting of unlawful content or unsolicited or unwelcome conduct or in pursuance of a legal, professional, or other lawful obligation; or (V) to seek support or help with respect to the receipt of an unsolicited intimate visual depiction; (iii) a disclosure reasonably intended to assist the identifiable individual; (iv) a person who possesses or publishes an intimate visual depiction of himself or herself engaged in nudity or sexually explicit conduct (as that term is defined in section 2256(2)(A) of title 18); or (v) the publication of an intimate visual depiction that constitutes— (I) child pornography (as that term is defined in section 2256 of title 18); or (II) a visual depiction described in subsection (a) or (b) of section 1466A of title 18 (relating to obscene visual representations of the sexual abuse of children). (A) Except as provided in subparagraph (C), it shall be unlawful for any person, in interstate or foreign commerce, to use an interactive computer service to knowingly publish a digital forgery of an identifiable individual who is not a minor if— (i) the digital forgery was published without the consent of the identifiable individual; (ii) what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting; (iii) what is depicted is not a matter of public concern; and (iv) publication of the digital forgery— (I) is intended to cause harm; or (II) causes harm, including psychological, financial, or reputational harm, to the identifiable individual. (B) Except as provided in subparagraph (C), it shall be unlawful for any person, in interstate or foreign commerce, to use an interactive computer service to knowingly publish a digital forgery of an identifiable individual who is a minor with intent to— (i) abuse, humiliate, harass, or degrade the minor; or (ii) arouse or gratify the sexual desire of any person. (C) Subparagraphs (A) and (B) shall not apply to— (i) a lawfully authorized investigative, protective, or intelligence activity of— (I) a law enforcement agency of the United States, a State, or a political subdivision of a State; or (II) an intelligence agency of the United States; (ii) a disclosure made reasonably and in good faith— (I) to a law enforcement officer or agency; (II) as part of a document production or filing associated with a legal proceeding; (III) as part of medical education, diagnosis, or treatment or for a legitimate medical, scientific, or education purpose; (IV) in the reporting of unlawful content or unsolicited or unwelcome conduct or in pursuance of a legal, professional, or other lawful obligation; or (V) to seek support or help with respect to the receipt of an unsolicited intimate visual depiction; (iii) a disclosure reasonably intended to assist the identifiable individual; (iv) a person who possesses or publishes a digital forgery of himself or herself engaged in nudity or sexually explicit conduct (as that term is defined in section 2256(2)(A) of title 18); or (v) the publication of an intimate visual depiction that constitutes— (I) child pornography (as that term is defined in section 2256 of title 18); or (II) a visual depiction described in subsection (a) or (b) of section 1466A of title 18 (relating to obscene visual representations of the sexual abuse of children). (A) Any person who violates paragraph (2)(A) or (3)(A) shall be fined under title 18, imprisoned not more than 2 years, or both. (B) Any person who violates paragraph (2)(B) or (3)(B) shall be fined under title 18, imprisoned not more than 3 years, or both. (5) For purposes of paragraphs (2) and (3)— (A) the fact that the identifiable individual provided consent for the creation of the intimate visual depiction shall not establish that the individual provided consent for the publication of the intimate visual depiction; and (B) the fact that the identifiable individual disclosed the intimate visual depiction to another individual shall not establish that the identifiable individual provided consent for the publication of the intimate visual depiction by the person alleged to have violated paragraph (2) or (3), respectively. (A) Any person who intentionally threatens to commit an offense under paragraph (2) for the purpose of intimidation, coercion, extortion, or to create mental distress shall be punished as provided in paragraph (4). (i) Any person who intentionally threatens to commit an offense under paragraph (3)(A) for the purpose of intimidation, coercion, extortion, or to create mental distress shall be fined under title 18, imprisoned not more than 18 months, or both. (ii) Any person who intentionally threatens to commit an offense under paragraph (3)(B) for the purpose of intimidation, coercion, extortion, or to create mental distress shall be fined under title 18, imprisoned not more than 30 months, or both. (A) The court, in imposing a sentence on any person convicted of a violation of paragraph (2) or (3), shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that the person forfeit to the United States— (i) any material distributed in violation of that paragraph; (ii) the person’s interest in property, real or personal, constituting or derived from any gross proceeds of the violation, or any property traceable to such property, obtained or retained directly or indirectly as a result of the violation; and (iii) any personal property of the person used, or intended to be used, in any manner or part, to commit or to facilitate the commission of the violation. (B) Section 853 of title 21, with the exception of subsections (a) and (d), shall apply to the criminal forfeiture of property under subparagraph (A). (8) The court shall order restitution for an offense under paragraph (2) or (3) in the same manner as under section 2264 of title 18. (9) Nothing in this subsection shall be construed to limit the application of any other relevant law, including section 2252 of title 18. (i) For purposes of this section— (1) The use of the term “telecommunications device” in this section— (A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; (B) does not include an interactive computer service; and (C) of the Internet Tax Freedom Act (47 U.S.C. 151 note)). (2) The term “interactive computer service” has the meaning provided in section 230(f)(2) of this title. (3) The term “access software” means software (including client or server software) or enabling tools that do not create or provide the content of the communication but that allow a user to do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. (4) The term “institution of higher education” has the meaning provided in section 1001 of title 20. (5) The term “library” means a library eligible for participation in State-based plans for funds under title III of the Library Services and Construction Act (20 U.S.C. 355e et seq.).