3 ms·

They helpfully define the term in the text of the proposed law. https://www.congress.gov/bill/118th-congress/house-bill/3106/text?s=1&r=68 https://www.congress

They helpfully define the term in the text of the proposed law. https://www.congress.gov/bill/118th-congress/house-bill/3106/text?s=1&r=68 https://www.congress.gov/bill/118th-congress/house-bill/3106... “(a) Definitions.—In this section: “(1) CONSENT.—The term ‘consent’ has the meaning given such term in section 1309. “(2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction. “(3) DIGITAL DEPICTION.—The term ‘digital depiction’ means a realistic visual depiction, as that term is defined in section 2256(5) of title 18, United States Code, of an individual that has been created or altered using digital manipulation. “(4) DISCLOSE.—The term ‘disclose’ has the meaning given such term in section 1309. “(5) INTIMATE DIGITAL DEPICTION.—The term ‘intimate digital depiction’ means a digital depiction of an individual that has been created or altered using digital manipulation and that depicts— “(A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual; “(B) the display or transfer of bodily sexual fluids— “(i) onto any part of the body of an identifiable individual; or “(ii) from the body of an identifiable individual; or “(C) an identifiable individual engaging in sexually explicit conduct. “(6) SEXUALLY EXPLICIT CONDUCT.—The term ‘sexually explicit conduct’ has the meaning given the term in subparagraphs (A) and (B) of section 2256(2) of title 18, United States Code.

_heimdall 3y ago
> (2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction "And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. If I see someone rob a convenience store and believed the person to look like Al Pacino, does that make the person identifiable? What if I actually thought it was him, not just that it looked like him? In the case of fake porn, the creator can't know if one viewing it will think the person was modeled after Taylor Swift or if their intent was to actually create porn that would be identified by viewers as Swift. Is this morally and ethically a problem? Absolutely, in my opinion. But can this be codified into law that is clear enough to make sure you don't break the law? Absolutely not, as long as the law depends on whether a viewer believes the fake porn looks like Swift or is Swift. A person can't be reasonably expected to stay on the right side of a law that is defined by how someone will judge the creation later. Obviously its entirely different if the creator attempts to pass it off as the original person, in this case if someone created or distributed fake porn and claimed it actually was Swift.
- anonymouskimmer 3y ago
  > "And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. Sure, that's what a jury and/or judge is for. The defendant has a lot of potential defenses against a civil claim. The criminal portion of the law is tighter: : “(a) Offense.—Whoever, in or affecting interstate or foreign commerce, discloses or threatens to disclose an intimate digital depiction— :: “(1) with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or :: “(2) with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual, The legal definition of "reckless": https://www.law.cornell.edu/wex/reckless_disregard https://www.law.cornell.edu/wex/reckless_disregard : reckless action is distinguished from negligent action in that the actor consciously disregards a substantial and unjustified risk, as opposed to merely being unreasonable. For example, in State v. Olson, a 1990 South Dakota Supreme Court decision, the court did not find a tractor driver who turned left at 5-15 mph and hit another car reckless because the prosecution could not prove that he was aware that there was an oncoming car.
  - _heimdall 3y ago
    Based on how today's courts operate, juries aren't offered the opportunity to interpret law. Lawyers will present a specific interpretation of laws they deem relevant to the case, they will provide facts and evidence of the charge, and ask juries to decide based solely on that. Ultimately it is left to judges to interpret law. Meaning that if laws are passed with ambiguous definitions unelected judges get to decide how they think the blanks should be filled in. Our elected officials can then, if they choose, pass laws with the intent of leaving them ambiguous to allow unelected judges to effectively write laws completely unbeholden to the very voters that they are meant to serve.
    - anonymouskimmer 3y ago
      For this law juries don't need to interpret the law, merely deciding whether the clauses of the law have been met or not is enough. Saying that they don't think the plaintiff or prosecution met the burden of proof is fine. In the US jury nullification is also a right. If the jury thinks that the law is too draconian for the facts of the case they can vote to acquit.

_heimdall 3y ago

> (2) DEPICTED INDIVIDUAL.—The term ‘depicted individual’ means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction "And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. If I see someone rob a convenience store and believed the person to look like Al Pacino, does that make the person identifiable? What if I actually thought it was him, not just that it looked like him? In the case of fake porn, the creator can't know if one viewing it will think the person was modeled after Taylor Swift or if their intent was to actually create porn that would be identified by viewers as Swift. Is this morally and ethically a problem? Absolutely, in my opinion. But can this be codified into law that is clear enough to make sure you don't break the law? Absolutely not, as long as the law depends on whether a viewer believes the fake porn looks like Swift or is Swift. A person can't be reasonably expected to stay on the right side of a law that is defined by how someone will judge the creation later. Obviously its entirely different if the creator attempts to pass it off as the original person, in this case if someone created or distributed fake porn and claimed it actually was Swift.

anonymouskimmer 3y ago
> "And who is identifiable" is doing some heavy lifting here and could be legally ambiguous. Sure, that's what a jury and/or judge is for. The defendant has a lot of potential defenses against a civil claim. The criminal portion of the law is tighter: : “(a) Offense.—Whoever, in or affecting interstate or foreign commerce, discloses or threatens to disclose an intimate digital depiction— :: “(1) with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or :: “(2) with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual, The legal definition of "reckless": https://www.law.cornell.edu/wex/reckless_disregard https://www.law.cornell.edu/wex/reckless_disregard : reckless action is distinguished from negligent action in that the actor consciously disregards a substantial and unjustified risk, as opposed to merely being unreasonable. For example, in State v. Olson, a 1990 South Dakota Supreme Court decision, the court did not find a tractor driver who turned left at 5-15 mph and hit another car reckless because the prosecution could not prove that he was aware that there was an oncoming car.
- _heimdall 3y ago
  Based on how today's courts operate, juries aren't offered the opportunity to interpret law. Lawyers will present a specific interpretation of laws they deem relevant to the case, they will provide facts and evidence of the charge, and ask juries to decide based solely on that. Ultimately it is left to judges to interpret law. Meaning that if laws are passed with ambiguous definitions unelected judges get to decide how they think the blanks should be filled in. Our elected officials can then, if they choose, pass laws with the intent of leaving them ambiguous to allow unelected judges to effectively write laws completely unbeholden to the very voters that they are meant to serve.
  - anonymouskimmer 3y ago
    For this law juries don't need to interpret the law, merely deciding whether the clauses of the law have been met or not is enough. Saying that they don't think the plaintiff or prosecution met the burden of proof is fine. In the US jury nullification is also a right. If the jury thinks that the law is too draconian for the facts of the case they can vote to acquit.