On July 10, 2024, the U.S. Senate passed the Stopping Harmful Image Exploitation and Limiting Distribution (“SHIELD”) Act, which would criminalize the distribution of private sexually explicit or nude images online.  

Specifically, the legislation makes it unlawful to knowingly distribute a private intimate visual depiction of an individual that is obtained or created under circumstances in which the actor knew or reasonably should have known the individual depicted had a reasonable expectation of privacy, and where the distribution causes or is intended to cause harm to the individual depicted.  The bill would further criminalize the knowing distribution of a visual depiction of a nude minor with intent to abuse, humiliate, harass, or degrade the minor, or to arouse or gratify the sexual desire of any person.

There are exemptions from certain distributions of private intimate visual depictions from the legislation’s scope, including distributions that are made “reasonably” and “in good faith” to report unlawful or unsolicited activity or pursuant to a legal, professional, or other lawful obligation, among other exceptions.

Notably, the bill also provides that it does not apply to any provider of a “communications service” with regard to intimate visual depictions that are provided by another information content provider — i.e., a third party on the provider’s service — unless the provider of the communications service “intentionally solicits” or “knowingly and predominantly distributes” such content.  The bill defines a “communications service” to include, among other entities, providers of an “interactive computer service” within scope of Section 230 of the Communications Decency Act.

The bill passed the Senate by voice vote and now heads over to the House, where there is already companion legislation with notable bipartisan support (H.R. 3686).  Though legislation is difficult to pass when the House and the Senate are divided, the SHIELD Act has a serious chance of passage before the end of this Congress.