On December 14, 2023, the U.S. Senate passed the Revising Existing Procedures on Reporting via Technology (“REPORT”) Act (S. 474), which, among other provisions, would impose new obligations on providers to report additional categories of online child sexual abuse material (“CSAM”) under 18 U.S.C. § 2258A. 

Section 2258A requires electronic communication service providers and remote computing service providers to report, as soon as reasonably possible after obtaining actual knowledge, apparent violations of certain provisions of federal law pertaining to child exploitation or CSAM to the National Center for Missing and Exploited Children’s (“NCMEC”). 

The REPORT Act would expand this obligation to include apparent violations involving (1) child sex trafficking in violation of 18 U.S.C. § 1591, and (2) coercion or enticement of a minor to engage in prostitution or other illegal sexual activity in violation of 18 U.S.C. § 2422(b).  The bill would not otherwise change the actual knowledge requirement in § 2258A(a)(1).

The bill’s provisions would also:

  • Increase the penalties for providers that “knowingly and willfully” fail to make a report to NCMEC, to as much as $850,000 for providers with at least 100 million monthly active users that fail to make an initial report, and $1 million for providers with at least 100 million monthly active users that subsequently fail to make a second or additional report;
  • Establish liability protections for vendors retained by NCMEC, and require these vendors to minimize access to CSAM, deploy end-to-end encryption for the storage and transfer of these visual materials, and undergo independent annual cybersecurity audits;
  • Grant liability protections to minors depicted in CSAM (or their legal representatives) who report the materials to NCMEC; and  
  • Extend the period of time for which providers that report CSAM must securely preserve the contents of the report and any materials conmingled with it, from 90 days under current law to one year.  The bill would further permit providers to voluntarily preserve reports for longer than one year, for the purpose of reducing the proliferation of child sexual exploitation online.  

While the REPORT Act has been passed only by the Senate, Representatives Laurel Lee (R-FL) and Madeleine Dean (D-PA) are leading substantially similar companion legislation in the House (H.R. 5082).  Bipartisan support for the bill in both chambers of Congress makes it a strong contender for passage next year. 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

Photo of Diana Lee Diana Lee

Diana Lee is an associate in the firm’s London office and a member of the Data Privacy and Cybersecurity Practice Group. Diana’s practice focuses on regulatory, enforcement, and litigation matters relating to electronic surveillance, law enforcement access to digital evidence, and data privacy…

Diana Lee is an associate in the firm’s London office and a member of the Data Privacy and Cybersecurity Practice Group. Diana’s practice focuses on regulatory, enforcement, and litigation matters relating to electronic surveillance, law enforcement access to digital evidence, and data privacy and cybersecurity. Before rejoining the firm, she clerked for Judge Victor A. Bolden, United States District Judge for the District of Connecticut.

Diana is a member of the Bars of New York and the District of Columbia.