18 U.S.C. § 2258B

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 2258B - Limited liability for the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing & Exploited Children

(a) IN GENERAL.-Except as provided in subsection (b), a civil claim or criminal charge against a provider or domain name registrar, including any director, officer, employee, or agent of such provider or domain name registrar arising from the performance of the reporting or preservation responsibilities of such provider or domain name registrar under this section, section 2258A, or section 2258C may not be brought in any Federal or State court.

(b) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT.-Subsection (a) shall not apply to a claim or charge if the provider or domain name registrar, or a director, officer, employee, or agent of that provider or domain name registrar-

(1) engaged in intentional misconduct; or

(2) acted, or failed to act-

(A) with actual malice;

(B) with reckless disregard to a substantial risk of causing physical injury without legal justification; or

(C) for a purpose unrelated to the performance of any responsibility or function under sections ¹ 2258A, 2258C, 2702, or 2703.

(c) MINIMIZING ACCESS.-A provider and domain name registrar shall-

(1) minimize the number of employees that are provided access to any visual depiction provided under section 2258A or 2258C; and

(2) ensure that any such visual depiction is permanently destroyed, upon a request from a law enforcement agency to destroy the visual depiction.

(d) LIMITED LIABILITY FOR NCMEC-CONTRACTED VENDORS.-

(1) IN GENERAL.-Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against a vendor contractually retained and designated by NCMEC to support the duties of NCMEC under section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)).

(2) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT.-Paragraph (1) shall not apply to a claim or charge if the vendor-

(A) engaged in-

(i) intentional misconduct; or

(ii) negligent conduct; or

(B) acted, or failed to act-

(i) with actual malice;

(ii) with reckless disregard to a substantial risk of causing injury without legal justification; or

(iii) for a purpose unrelated to the performance of any responsibility or function-

(I) set forth in paragraph (1); or

(II) pursuant to sections ¹ 2258A, 2258C, 2702, or 2703.

(3) VENDOR CYBERSECURITY REQUIREMENTS.-With respect to any visual depiction provided pursuant to the duties of NCMEC under section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)) that is stored or transferred by a vendor contractually retained and designated by NCMEC to support such duties of NCMEC, a vendor shall-

(A) secure such visual depiction in a manner that is consistent with the most recent version of the Cybersecurity Framework developed by the National Institute of Standards and Technology, or any successor thereto;

(B) minimize the number of employees that may be able to obtain access to such visual depiction;

(C) employ end-to-end encryption for data storage and transfer functions, or an equivalent technological standard;

(D) undergo an independent annual cybersecurity audit to determine whether such visual depiction is secured as required under subparagraph (A); and

(E) promptly address all issues identified by an audit described in subparagraph (D).

(e) LIMITED LIABILITY FOR REPORTING APPARENT CHILD PORNOGRAPHY BY AN INDIVIDUAL DEPICTED IN THE CHILD PORNOGRAPHY AS A MINOR, OR A REPRESENTATIVE OF SUCH INDIVIDUAL.-

(1) IN GENERAL.-Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against an individual depicted in child pornography as a minor, or a representative of such individual, arising from a report to the NCMEC CyberTipline by the individual, or the representative of such individual, of information that relates to the child pornography in which the individual is depicted as a minor, including a copy of the child pornography.

(2) INTENTIONAL, RECKLESS, OR OTHER MISCONDUCT.-Paragraph (1) shall not apply to a claim or charge if the individual, or the representative of such individual-

(A) engaged in-

(i) intentional misconduct;

(ii) negligent conduct; or

(iii) any activity which constitutes a violation of section 2251; or

(B) acted, or failed to act-

(i) with actual malice; or

(ii) with reckless disregard to a substantial risk of causing injury without legal justification.

(3) MINIMIZING ACCESS.-With respect to any child pornography reported to the NCMEC CyberTipline by an individual depicted in the child pornography as a minor, or a representative of such individual, NCMEC shall minimize access to the child pornography and ensure the appropriate deletion of the child pornography, as set forth in section 2258D.

(4) DEFINITION.-For purposes of this subsection, the term "representative", with respect to an individual depicted in child pornography-

(A) means-

(i) the parent or legal guardian of the individual, if the individual is under 18 years of age;

(ii) the legal guardian or other person appointed by a court to represent the individual;

(iii) a legal representative retained by the individual;

(iv) a representative of the estate of the individual; or

(v) a person who is a mandated reporter under section 226(a)(1) of the Victims of Child Abuse Act of 1990 (34 U.S.C. 20341(a)(1)); and

(B) does not include a person who engaged in any activity which constitutes a violation of section 2251.

¹ So in original. Probably should be "section".

18 U.S.C. § 2258B

Added Pub. L. 110-401, title V, §501(a), Oct. 13, 2008, 122 Stat. 4248; amended Pub. L. 115-395, §3, Dec. 21, 2018, 132 Stat. 5292; Pub. L. 118-59, §2(a), May 7, 2024, 138 Stat. 1014.

EDITORIAL NOTES

AMENDMENTS2024- Pub. L. 118-59, §2(a)(1), substituted "the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing & Exploited Children" for "providers or domain name registrars" in section catchline.Subsec. (b). Pub. L. 118-59, §2(a)(2)(A), inserted "or charge" after "a claim" in introductory provisions.Subsec. (b)(2)(C). Pub. L. 118-59, §2(a)(2)(B), struck out "this section," after "or function under". Subsecs. (d), (e). Pub. L. 118-59, §2(a)(3), added subsecs. (d) and (e).2018- Pub. L. 115-395, §3(1), substituted "providers, or domain name registrars" for "electronic communication service providers, remote computing service providers, or domain name registrar" in section catchline.Subsec. (a). Pub. L. 115-395, §3(2), substituted "a provider" for "an electronic communication service provider, a remote computing service provider," and substituted "such provider" for "such electronic communication service provider, remote computing service provider," in two places.Subsec. (b). Pub. L. 115-395, §3(3), substituted "provider" for "electronic communication service provider, remote computing service provider," in two places in introductory provisions.Subsec. (c). Pub. L. 115-395, §3(4), substituted "A provider" for "An electronic communication service provider, a remote computing service provider," in introductory provisions and "visual depiction" for "image" wherever appearing in pars. (1) and (2).

STATUTORY NOTES AND RELATED SUBSIDIARIES

APPLICABILITY Pub. L. 118-59, §2(b), May 7, 2024, 138 Stat. 1016, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to a civil claim or criminal charge that is filed on or after the date of enactment of this Act [May 7, 2024]."