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U.S. Senate Passes REPORT Act to Expand Scope of CSAM Reporting Obligations

By Nicholas Xenakis & Diana Lee on December 22, 2023
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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. 

Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill and legal experience to provide public policy and crisis management counsel to clients in a range of industries.

Nick assists clients in developing and implementing policy solutions to litigation and regulatory matters, including on issues involving…

Nick Xenakis draws on his Capitol Hill and legal experience to provide public policy and crisis management counsel to clients in a range of industries.

Nick assists clients in developing and implementing policy solutions to litigation and regulatory matters, including on issues involving antitrust, artificial intelligence, bankruptcy, criminal justice, financial services, immigration, intellectual property, life sciences, national security, and technology. He also represents companies and individuals in investigations before U.S. Senate and House Committees.

Nick previously served as General Counsel for the U.S. Senate Judiciary Committee, where he managed committee staff and directed legislative efforts. He also participated in key judicial and Cabinet confirmations, including of Attorneys General and Supreme Court Justices. Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia.

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Photo of Diana Lee Diana Lee

Diana Lee is an associate in the technology regulatory group. She counsels clients on a range of regulatory and litigation matters involving electronic surveillance, government demands for data, national security, and data privacy and cybersecurity issues, with a particular focus on cross-border and…

Diana Lee is an associate in the technology regulatory group. She counsels clients on a range of regulatory and litigation matters involving electronic surveillance, government demands for data, national security, and data privacy and cybersecurity issues, with a particular focus on cross-border and multi-jurisdictional concerns.

Before rejoining the firm, Diana clerked for the Honorable Victor A. Bolden on the U.S. District Court for the District of Connecticut.

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

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Inside Privacy
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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