1     
INTIMATE IMAGE DISTRIBUTION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Clare Collard

5     
Senate Sponsor: Keith Grover

6     

7     LONG TITLE
8     Committee Note:
9          The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10               Legislative Vote:     12 voting for     0 voting against     4 absent
11     General Description:
12          This bill amends the offense of aggravated unlawful distribution of a counterfeit
13     intimate image.
14     Highlighted Provisions:
15          This bill:
16          ▸     restricts the offense of aggravated unlawful distribution of a counterfeit intimate
17     image to individuals 18 years old and older; and
18          ▸     makes technical revisions.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-5b-205, as enacted by Laws of Utah 2021, Chapter 134
26     

27     Be it enacted by the Legislature of the state of Utah:

28          Section 1. Section 76-5b-205 is amended to read:
29          76-5b-205. Unlawful distribution of a counterfeit intimate image -- Penalty.
30          (1) As used in this section:
31          (a) "Child" means an individual under [the age of] 18 years old.
32          (b) "Counterfeit intimate image" means any visual depiction, photograph, film, video,
33     recording, picture, or computer or computer-generated image or picture, whether made or
34     produced by electronic, mechanical, or other means, that has been edited, manipulated, or
35     altered to depict the likeness of an identifiable individual and purports to, or is made to appear
36     to, depict that individual's:
37          (i) exposed human male or female genitals or pubic area, with less than an opaque
38     covering;
39          (ii) a female breast with less than an opaque covering, or any portion of the female
40     breast below the top of the areola; or
41          (iii) the individual engaged in any sexually explicit conduct or simulated sexually
42     explicit conduct.
43          (c) "Distribute" means the same as that term is defined in Section 76-5b-203.
44          (d) "Sexually explicit conduct" means the same as that term is defined in Section
45     76-5b-203.
46          (e) "Simulated sexually explicit conduct" means the same as that term is defined in
47     Section 76-5b-203.
48          (2) An actor commits the offense of unlawful distribution of a counterfeit intimate
49     image if the actor knowingly or intentionally distributes a counterfeit intimate image that the
50     actor knows or should reasonably know would cause a reasonable person to suffer emotional or
51     physical distress or harm, if:
52          (a) the actor has not received consent from the depicted individual to distribute the
53     counterfeit intimate image; and
54          (b) the counterfeit intimate image was created or provided by the actor without the
55     knowledge and consent of the depicted individual.
56          (3) An [individual] actor who is 18 years old or older commits aggravated unlawful
57     distribution of a counterfeit intimate image if, in committing the offense described in
58     Subsection (2), the individual depicted in the counterfeit intimate image is a child.

59          (4) This section does not apply to:
60          (a) (i) lawful practices of law enforcement agencies;
61          (ii) prosecutorial agency functions;
62          (iii) the reporting of a criminal offense;
63          (iv) court proceedings or any other judicial proceeding; or
64          (v) lawful and generally accepted medical practices and procedures;
65          (b) a counterfeit intimate image if the individual [portrayed] depicted in the image
66     voluntarily allows public exposure of the image;
67          (c) a counterfeit intimate image that is portrayed in a lawful commercial setting; or
68          (d) a counterfeit intimate image that is related to a matter of public concern or interest
69     or protected by the First Amendment to the United States Constitution or Article I, Sections 1
70     and 15 of the Utah Constitution.
71          (5) (a) This section does not apply to an Internet service provider or interactive
72     computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic
73     communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service,
74     information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a
75     commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined
76     in 47 U.S.C. Sec. 522, if:
77          (i) the distribution of a counterfeit intimate image by the Internet service provider
78     occurs only incidentally through the provider's function of:
79          (A) transmitting or routing data from one person to another person; or
80          (B) providing a connection between one person and another person;
81          (ii) the provider does not intentionally aid or abet in the distribution of the counterfeit
82     intimate image; and
83          (iii) the provider does not knowingly receive from or through a person who distributes
84     the counterfeit intimate image a fee greater than the fee generally charged by the provider, as a
85     specific condition for permitting the person to distribute the counterfeit intimate image.
86          (b) This section does not apply to a hosting company, as defined in Section
87     76-10-1230, if:
88          (i) the distribution of a counterfeit intimate image by the hosting company occurs only
89     incidentally through the hosting company's function of providing data storage space or data

90     caching to a person;
91          (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
92     of the counterfeit intimate image;
93          (iii) the hosting company does not knowingly receive from or through a person who
94     distributes the counterfeit intimate image a fee greater than the fee generally charged by the
95     provider, as a specific condition for permitting the person to distribute, store, or cache the
96     counterfeit intimate image; and
97          (iv) the hosting company immediately removes the counterfeit intimate image upon
98     notice from a law enforcement agency, prosecutorial agency, or the individual purportedly
99     depicted in the counterfeit intimate image.
100          (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
101     section if it complies with Section 76-10-1231.
102          (6) This section does not apply to an actor who engages in conduct that constitutes a
103     violation of this section to the extent that the actor is chargeable, for the same conduct, under
104     Section 76-5b-201, sexual exploitation of a minor.
105          (7) (a) Except as provided in Subsection (7)(b), knowing or intentional unlawful
106     distribution of a counterfeit intimate image is a class A misdemeanor.
107          (b) Knowing or intentional unlawful distribution of a counterfeit intimate image is a
108     third degree felony on a second or subsequent conviction for an offense under this section that
109     arises from a separate criminal episode as defined in Section 76-1-401.
110          (c) Except as provided in Subsection (7)(d), knowing or intentional aggravated
111     unlawful distribution of a counterfeit intimate image is a third degree felony.
112          (d) Knowing or intentional aggravated unlawful distribution of a counterfeit intimate
113     image is a second degree felony on a second or subsequent conviction for an offense under this
114     section that arises from a separate criminal episode as defined in Section 76-1-401.