1     
INTIMATE IMAGE DISTRIBUTION PROHIBITION

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karen Kwan

5     
Senate Sponsor: Todd D. Weiler

6     Cosponsors:
7     Clare Collard
8     Jennifer Dailey-Provost
9     James A. Dunnigan
10     Sandra Hollins
Brian S. King
Ashlee Matthews
Merrill F. Nelson
Stephanie Pitcher
Adam Robertson
Angela Romero
Travis M. Seegmiller
Andrew Stoddard
Mark A. Wheatley

11     

12     LONG TITLE
13     General Description:
14          This bill creates the offense of the unlawful distribution of a counterfeit intimate image.
15     Highlighted Provisions:
16          This bill:
17          ▸     defines terms;
18          ▸     creates the offense of unlawful distribution of a counterfeit intimate image;
19          ▸     creates the offense of aggravated unlawful distribution of a counterfeit intimate
20     image; and
21          ▸     imposes penalties.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:

28          77-36-1, as last amended by Laws of Utah 2020, Chapter 142
29     ENACTS:
30          76-5b-205, Utah Code Annotated 1953
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 76-5b-205 is enacted to read:
34          76-5b-205. Unlawful distribution of a counterfeit intimate image -- Penalty.
35          (1) As used in this section:
36          (a) "Child" means an individual under the age of 18.
37          (b) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
38     recording, picture, or computer or computer-generated image or picture, whether made or
39     produced by electronic, mechanical, or other means, that has been edited, manipulated, or
40     altered to depict the likeness of an identifiable individual and purports to, or is made to appear
41     to, depict that individual's:
42          (i) exposed human male or female genitals or pubic area, with less than an opaque
43     covering;
44          (ii) a female breast with less than an opaque covering, or any portion of the female
45     breast below the top of the areola; or
46          (iii) the individual engaged in any sexually explicit conduct or simulated sexually
47     explicit conduct.
48          (c) "Distribute" means the same as that term is defined in Section 76-5b-203.
49          (d) "Sexually explicit conduct" means the same as that term is defined in Section
50     76-5b-203.
51          (e) "Simulated sexually explicit conduct" means the same as that term is defined in
52     Section 76-5b-203.
53          (2) An actor commits the offense of unlawful distribution of a counterfeit intimate
54     image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
55     actor knows or should reasonably know would cause a reasonable person to suffer emotional or

56     physical distress or harm, if:
57          (a) the actor has not received consent from the depicted individual to distribute the
58     counterfeit intimate image; and
59          (b) the counterfeit intimate image was created or provided by the actor without the
60     knowledge and consent of the depicted individual.
61          (3) An individual commits aggravated unlawful distribution of a counterfeit intimate
62     image if, in committing the offense described in Subsection (2), the individual depicted in the
63     counterfeit intimate image is a child.
64          (4) This section does not apply to:
65          (a) (i) lawful practices of law enforcement agencies;
66          (ii) prosecutorial agency functions;
67          (iii) the reporting of a criminal offense;
68          (iv) court proceedings or any other judicial proceeding; or
69          (v) lawful and generally accepted medical practices and procedures;
70          (b) a counterfeit intimate image if the individual portrayed in the image voluntarily
71     allows public exposure of the image;
72          (c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
73          (d) a counterfeit intimate image that is related to a matter of public concern or interest
74     or protected by the First Amendment to the United States Constitution or Article I, Sections 1
75     and 15 of the Utah Constitution.
76          (5) (a) This section does not apply to an Internet service provider or interactive
77     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
78     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
79     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
80     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
81     in 47 U.S.C. Sec. 522, if:
82          (i) the distribution of a counterfeit intimate image by the Internet service provider
83     occurs only incidentally through the provider's function of:

84          (A) transmitting or routing data from one person to another person; or
85          (B) providing a connection between one person and another person;
86          (ii) the provider does not intentionally aid or abet in the distribution of the counterfeit
87     intimate image; and
88          (iii) the provider does not knowingly receive from or through a person who distributes
89     the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a
90     specific condition for permitting the person to distribute the counterfeit intimate image.
91          (b) This section does not apply to a hosting company, as defined in Section
92     76-10-1230, if:
93          (i) the distribution of a counterfeit intimate image by the hosting company occurs only
94     incidentally through the hosting company's function of providing data storage space or data
95     caching to a person;
96          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
97     of the counterfeit intimate image;
98          (iii) the hosting company does not knowingly receive from or through a person who
99     distributes the counterfeit intimate image a fee greater than the fee generally charged by the
100     provider, as a specific condition for permitting the person to distribute, store, or cache the
101     counterfeit intimate image; and
102          (iv) the hosting company immediately removes the counterfeit intimate image upon
103     notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
104     depicted in the counterfeit intimate image.
105          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
106     section if it complies with Section 76-10-1231.
107          (6) This section does not apply to an actor who engages in conduct that constitutes a
108     violation of this section to the extent that the actor is chargeable, for the same conduct, under
109     Section 76-5b-201, sexual exploitation of a minor.
110          (7) (a) Except as provided in Subsection (7)(b), knowing or intentional unlawful
111     distribution of a counterfeit intimate image is a class A misdemeanor.

112          (b) Knowing or intentional unlawful distribution of a counterfeit intimate image is a
113     third degree felony on a second or subsequent conviction for an offense under this section that
114     arises from a separate criminal episode as defined in Section 76-1-401.
115          (c) Except as provided in Subsection (7)(d), knowing or intentional aggravated
116     unlawful distribution of a counterfeit intimate image is a third degree felony.
117          (d) Knowing or intentional aggravated unlawful distribution of a counterfeit intimate
118     image is a second degree felony on a second or subsequent conviction for an offense under this
119     section that arises from a separate criminal episode as defined in Section 76-1-401.
120          Section 2. Section 77-36-1 is amended to read:
121          77-36-1. Definitions.
122          As used in this chapter:
123          (1) "Cohabitant" means the same as that term is defined in Section 78B-7-102.
124          (2) "Department" means the Department of Public Safety.
125          (3) "Divorced" means an individual who has obtained a divorce under Title 30, Chapter
126     3, Divorce.
127          (4) "Domestic violence" or "domestic violence offense" means any criminal offense
128     involving violence or physical harm or threat of violence or physical harm, or any attempt,
129     conspiracy, or solicitation to commit a criminal offense involving violence or physical harm,
130     when committed by one cohabitant against another. "Domestic violence" or "domestic
131     violence offense" includes commission or attempt to commit, any of the following offenses by
132     one cohabitant against another:
133          (a) aggravated assault, as described in Section 76-5-103;
134          (b) aggravated cruelty to an animal, as described in Subsection 76-9-301(4), with the
135     intent to harass or threaten the other cohabitant;
136          (c) assault, as described in Section 76-5-102;
137          (d) criminal homicide, as described in Section 76-5-201;
138          (e) harassment, as described in Section 76-5-106;
139          (f) electronic communication harassment, as described in Section 76-9-201;

140          (g) kidnapping, child kidnapping, or aggravated kidnapping, as described in Sections
141     76-5-301, 76-5-301.1, and 76-5-302;
142          (h) mayhem, as described in Section 76-5-105;
143          (i) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
144     Section 76-5b-201, Sexual exploitation of a minor -- Offenses;
145          (j) stalking, as described in Section 76-5-106.5;
146          (k) unlawful detention or unlawful detention of a minor, as described in Section
147     76-5-304;
148          (l) violation of a protective order or ex parte protective order, as described in Section
149     76-5-108;
150          (m) any offense against property described in Title 76, Chapter 6, Part 1, Property
151     Destruction, Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass, or Title 76, Chapter 6,
152     Part 3, Robbery;
153          (n) possession of a deadly weapon with criminal intent, as described in Section
154     76-10-507;
155          (o) discharge of a firearm from a vehicle, near a highway, or in the direction of any
156     person, building, or vehicle, as described in Section 76-10-508;
157          (p) disorderly conduct, as defined in Section 76-9-102, if a conviction of disorderly
158     conduct is the result of a plea agreement in which the defendant was originally charged with a
159     domestic violence offense otherwise described in this Subsection (4), except that a conviction
160     of disorderly conduct as a domestic violence offense, in the manner described in this
161     Subsection (4)(p), does not constitute a misdemeanor crime of domestic violence under 18
162     U.S.C. Sec. 921, and is exempt from the federal Firearms Act, 18 U.S.C. Sec. 921 et seq.;
163          (q) child abuse, as described in Section 76-5-109.1;
164          (r) threatening use of a dangerous weapon, as described in Section 76-10-506;
165          (s) threatening violence, as described in Section 76-5-107;
166          (t) tampering with a witness, as described in Section 76-8-508;
167          (u) retaliation against a witness or victim, as described in Section 76-8-508.3;

168          (v) unlawful distribution of an intimate image, as described in Section 76-5b-203, or
169     unlawful distribution of a counterfeit intimate image, as described in Section 76-5b-205;
170          (w) sexual battery, as described in Section 76-9-702.1;
171          (x) voyeurism, as described in Section 76-9-702.7;
172          (y) damage to or interruption of a communication device, as described in Section
173     76-6-108; or
174          (z) an offense described in Subsection 78B-7-806(1).
175          (5) "Jail release agreement" means the same as that term is defined in Section
176     78B-7-801.
177          (6) "Jail release court order" means the same as that term is defined in Section
178     78B-7-801.
179          (7) "Marital status" means married and living together, divorced, separated, or not
180     married.
181          (8) "Married and living together" means a couple whose marriage was solemnized
182     under Section 30-1-4 or 30-1-6 and who are living in the same residence.
183          (9) "Not married" means any living arrangement other than married and living together,
184     divorced, or separated.
185          (10) "Protective order" includes an order issued under Subsection 78B-7-804(3).
186          (11) "Pretrial protective order" means a written order:
187          (a) specifying and limiting the contact a person who has been charged with a domestic
188     violence offense may have with an alleged victim or other specified individuals; and
189          (b) specifying other conditions of release under Sections 78B-7-802 or 78B-7-803,
190     pending trial in the criminal case.
191          (12) "Sentencing protective order" means a written order of the court as part of
192     sentencing in a domestic violence case that limits the contact a person who has been convicted
193     of a domestic violence offense may have with a victim or other specified individuals under
194     Section 78B-7-804.
195          (13) "Separated" means a couple who have had their marriage solemnized under

196     Section 30-1-4 or 30-1-6 and who are not living in the same residence.
197          (14) "Victim" means a cohabitant who has been subjected to domestic violence.