Bill Text: IA SSB1053 | 2021-2022 | 89th General Assembly | Introduced

Bill Title: A bill for an act creating a civil remedy for the disclosure of private, sexually explicit images without consent of the depicted individual.(See SF 324.)

Spectrum: Committee Bill

Status: (Introduced) 2021-02-10 - Committee report approving bill, renumbered as SF 324. [SSB1053 Detail]

Download: Iowa-2021-SSB1053-Introduced.html
Senate Study Bill 1053 - Introduced SENATE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN) A BILL FOR An Act creating a civil remedy for the disclosure of private, 1 sexually explicit images without consent of the depicted 2 individual. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1403XC (1) 89 cm/jh
S.F. _____ Section 1. NEW SECTION . 659A.1 Short title. 1 This chapter may be cited as the “Uniform Civil Remedies for 2 Unauthorized Disclosure of Intimate Images Act”. 3 Sec. 2. NEW SECTION . 659A.2 Definitions. 4 As used in this chapter, unless the context otherwise 5 requires: 6 1. “Consent” means affirmative, conscious, and voluntary 7 authorization by an individual with legal capacity to give 8 authorization. 9 2. “Depicted individual” means an individual whose body is 10 shown in whole or in part in an intimate image. 11 3. “Disclosure” means transfer, publication, or distribution 12 to another person. “Disclose” has a corresponding meaning. 13 4. “Identifiable” means recognizable by a person other than 14 the depicted individual from any of the following: 15 a. An intimate image itself. 16 b. An intimate image and identifying characteristic 17 displayed in connection with the intimate image. 18 5. “Identifying characteristic” means information that may 19 be used to identify a depicted individual. 20 6. “Individual” means a human being. 21 7. “Intimate image” means a photograph, film, video 22 recording, or other similar medium that shows any of the 23 following: 24 a. The uncovered genitals, pubic area, anus, or female 25 post-pubescent nipple of a depicted individual. 26 b. A depicted individual engaging in or being subjected to 27 sexual conduct. 28 8. “Person” means an individual, estate, business 29 or nonprofit entity, public corporation, government or 30 governmental subdivision, agency, or instrumentality, or other 31 legal entity. 32 9. “Sexual conduct” includes all of the following: 33 a. Masturbation. 34 b. Genital, anal, or oral sex. 35 -1- LSB 1403XC (1) 89 cm/jh 1/ 7
S.F. _____ c. Sexual penetration of, or with, an object. 1 d. Bestiality. 2 e. The transfer of semen onto a depicted individual. 3 Sec. 3. NEW SECTION . 659A.3 Civil action. 4 1. As used in this section, unless the context otherwise 5 requires: 6 a. “Harm” includes physical harm, economic harm, and 7 emotional distress whether or not accompanied by physical or 8 economic harm. 9 b. “Private” means any of the following: 10 (1) Created or obtained under circumstances in which a 11 depicted individual had a reasonable expectation of privacy. 12 (2) Made accessible through theft, bribery, extortion, 13 fraud, false pretenses, voyeurism, or exceeding authorized 14 access to an account, message, file, device, resource, or 15 property. 16 2. Except as otherwise provided in section 659A.4, a 17 depicted individual who is identifiable and who suffers harm 18 from a person’s intentional disclosure or threatened disclosure 19 of an intimate image that was private without the depicted 20 individual’s consent has a cause of action against the person 21 if the person knew, or acted with reckless disregard regarding, 22 all of the following: 23 a. The depicted individual did not consent to the 24 disclosure. 25 b. The intimate image was private. 26 c. The depicted individual was identifiable. 27 3. The following conduct by a depicted individual does 28 not establish by itself that the individual consented to the 29 disclosure of the intimate image which is the subject of an 30 action under this chapter or that the individual lacked a 31 reasonable expectation of privacy: 32 a. Consent to creation of the image. 33 b. Previous consensual disclosure of the image. 34 4. A depicted individual who does not consent to the 35 -2- LSB 1403XC (1) 89 cm/jh 2/ 7
S.F. _____ sexual conduct or uncovering of the part of the body depicted 1 in an intimate image of the individual retains a reasonable 2 expectation of privacy even if the image was created when the 3 individual was in a public place. 4 Sec. 4. NEW SECTION . 659A.4 Exceptions to liability. 5 1. As used in this section, unless the context otherwise 6 requires: 7 a. “Child” means an unemancipated individual who is less 8 than eighteen years of age. 9 b. “Parent” means an individual recognized as a parent under 10 law of this state other than this chapter. 11 2. A person is not liable under this chapter if the person 12 proves that disclosure of, or a threat to disclose, an intimate 13 image was any of the following: 14 a. Made in good faith in any of the following circumstances: 15 (1) Law enforcement. 16 (2) A legal proceeding. 17 (3) Medical education or treatment. 18 b. Made in good faith in the reporting or investigation of 19 any of the following: 20 (1) Unlawful conduct. 21 (2) Unsolicited and unwelcome conduct. 22 c. Related to a matter of public concern or public interest. 23 d. Reasonably intended to assist the depicted individual. 24 3. Subject to subsection 4, a defendant who is a person 25 responsible for the care of a child as defined in section 26 232.68 is not liable under this chapter for a disclosure or 27 threatened disclosure of an intimate image, as defined in 28 section 659A.2, subsection 7, paragraph “a” , of the child. 29 4. If a defendant asserts an exception to liability under 30 subsection 3, the exception does not apply if the plaintiff 31 proves the disclosure was any of the following: 32 a. Prohibited by law other than this chapter. 33 b. Made for the purpose of sexual arousal, sexual 34 gratification, humiliation, degradation, or monetary or 35 -3- LSB 1403XC (1) 89 cm/jh 3/ 7
S.F. _____ commercial gain. 1 5. Disclosure of, or a threat to disclose, an intimate image 2 is not a matter of public concern or public interest solely 3 because the depicted individual is a public figure. 4 Sec. 5. NEW SECTION . 659A.5 Plaintiff’s privacy. 5 In an action under this chapter all of the following are 6 true: 7 1. The court may exclude or redact from all pleadings and 8 documents filed in the action other identifying characteristics 9 of the plaintiff under rule of civil procedure 1.422. 10 2. A plaintiff to whom subsection 1 applies shall file with 11 the court and serve on the defendant a confidential information 12 form that includes the excluded or redacted plaintiff’s name 13 and other identifying characteristics. 14 3. The court may make further orders as necessary to protect 15 the identity and privacy of a plaintiff. 16 Sec. 6. NEW SECTION . 659A.6 Remedies. 17 1. In an action under this chapter, a prevailing plaintiff 18 may recover all of the following: 19 a. The greater of the following: 20 (1) Economic and noneconomic damages proximately caused by 21 the defendant’s disclosure or threatened disclosure, including 22 damages for emotional distress whether or not accompanied by 23 other damages. 24 (2) Statutory damages not to exceed ten thousand dollars 25 against each defendant found liable under this chapter for all 26 disclosures and threatened disclosures by the defendant of 27 which the plaintiff knew or reasonably should have known when 28 filing the action or which became known during the pendency of 29 the action. In determining the amount of statutory damages 30 under this subparagraph, consideration shall be given to all 31 of the following: 32 (a) The age of the parties at the time of the disclosure or 33 threatened disclosure. 34 (b) The number of disclosures or threatened disclosures 35 -4- LSB 1403XC (1) 89 cm/jh 4/ 7
S.F. _____ made by the defendant. 1 (c) The breadth of distribution of the image by the 2 defendant. 3 (d) Other exacerbating or mitigating factors. 4 b. An amount equal to any monetary gain made by the 5 defendant from disclosure of the intimate image. 6 c. Punitive damages as allowed under chapter 668A. 7 2. In an action under this chapter, the court may award a 8 prevailing plaintiff all of the following: 9 a. Reasonable attorney fees and costs. 10 b. Additional relief, including injunctive relief. 11 3. This chapter does not affect a right or remedy available 12 under law of this state other than this chapter. 13 Sec. 7. NEW SECTION . 659A.7 Statute of limitations. 14 1. An action under section 659A.3, subsection 2, for: 15 a. An unauthorized disclosure shall not be brought later 16 than four years from the date the disclosure was discovered or 17 should have been discovered with the exercise of reasonable 18 diligence. 19 b. A threat to disclose shall not be brought later than four 20 years from the date of the threat to disclose. 21 2. This section is subject to section 614.8. 22 Sec. 8. NEW SECTION . 659A.8 Construction. 23 This chapter shall be construed to be consistent with the 24 Communications Decency Act of 1996, 47 U.S.C. §230. 25 Sec. 9. NEW SECTION . 659A.9 Uniformity of application and 26 construction. 27 In applying and construing this chapter, consideration shall 28 be given to the need to promote uniformity of the law with 29 respect to its subject matter among states that enact it. 30 Sec. 10. Section 614.8, subsection 2, Code 2021, is amended 31 to read as follows: 32 2. Except as provided in section 614.1, subsection 9 , the 33 times limited for actions in this chapter , or chapter 216 , 34 659A, 669 , or 670 , except those brought for penalties and 35 -5- LSB 1403XC (1) 89 cm/jh 5/ 7
S.F. _____ forfeitures, are extended in favor of minors, so that they 1 shall have one year from and after attainment of majority 2 within which to file a complaint pursuant to chapter 216 , to 3 make a claim pursuant to chapter 669 , or to otherwise commence 4 an action. 5 EXPLANATION 6 The inclusion of this explanation does not constitute agreement with 7 the explanation’s substance by the members of the general assembly. 8 This bill enacts the uniform civil remedies for unauthorized 9 disclosure of intimate images Act, which creates a cause of 10 action for the disclosure of private, sexually explicit images 11 without consent. 12 The bill applies only to sensitive content created or 13 obtained under circumstances in which the individual had a 14 reasonable expectation of privacy. The bill includes limited 15 exceptions for certain disclosures, including those made in 16 the course of law enforcement, legal proceedings or education, 17 medical treatment, or investigations of misconduct. The bill 18 also includes an exception for disclosures relating to matters 19 of public concern or public interest and disclosures reasonably 20 intended to assist the victim. 21 The bill notes federal statutory limitations on the 22 liability of providers and users of interactive computer 23 services consistent with the Communications Decency Act of 24 1996, 47 U.S.C. §230. 25 The bill does not impose liability on a discloser who lacks 26 the requisite awareness of any of these elements: (1) that the 27 image was created or obtained under circumstances in which the 28 individual had a reasonable expectation of privacy or that the 29 image was obtained through theft, bribery, false pretenses, 30 voyeurism, or other wrongful acts, (2) that the individual 31 shown in the image did not consent to the disclosure, or (3) 32 that the individual shown was identifiable. 33 The bill protects a plaintiff’s privacy by allowing the 34 court to redact or exclude identifying characteristics of the 35 -6- LSB 1403XC (1) 89 cm/jh 6/ 7
S.F. _____ plaintiff from the pleadings or documents filed in the action. 1 The plaintiff is required to file and serve the defendant with 2 a confidential information form that includes the redacted 3 or excluded information. The court is also allowed to make 4 further orders as necessary to protect the plaintiff’s identity 5 and privacy. 6 The bill provides civil remedies that the plaintiff may 7 recover including the greater of either economic or noneconomic 8 damages or statutory damages not to exceed $10,000, an amount 9 equal to any monetary gain made by the defendant from the 10 disclosure of the intimate image, and punitive damages. The 11 bill also provides that a prevailing plaintiff may be awarded 12 reasonable attorney fees and costs and additional relief. 13 The bill provides for a statute of limitations in which 14 a plaintiff must bring a cause of action under the new Code 15 chapter or otherwise be barred from doing so, but tolls the 16 statute of limitations for minors. 17 The bill only provides a civil remedy, but under current Code 18 section 709.21 similar conduct is an aggravated misdemeanor. 19 -7- LSB 1403XC (1) 89 cm/jh 7/ 7