S-4695-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Brian Schatz (D-HI)
What it does
The CONSENT Act would create a federal civil (private lawsuit) right of action allowing recipients of unsolicited intimate visual depictions — including AI-generated "deepfake" images — to sue the sender in federal court. The bill covers direct transmissions sent knowingly or with reckless disregard for the recipient's lack of consent, but explicitly excludes publishing (posting publicly online). Victims could recover up to $1,000 in statutory damages or compensatory damages for emotional distress, attorney fees, and court injunctions ordering the sender to stop.
Who benefits
Recipients of unsolicited explicit images, who are disproportionately women and girls. Minors who receive such images, who gain both a legal remedy and procedural privacy protections (pseudonym use in court filings). Legal guardians of minors or incapacitated individuals who gain standing to sue on their behalf. Attorneys who specialize in privacy and harassment litigation, who would gain a new federal cause of action. Victims of AI-generated "deepfake" intimate imagery, who currently have limited federal civil remedies.
Who is hurt
Individuals who send explicit images and could face civil liability, including in ambiguous consent situations. Defendants with limited financial means who could face attorney fee awards even for modest statutory damages. Businesses or platforms that transmit intimate content in ways that could be construed as direct transmission rather than publishing. Medical, educational, and law enforcement professionals, though they are explicitly exempted, may still face the burden of proving good-faith purpose if sued. Defendants in cases involving minors using pseudonyms may face asymmetric identification in proceedings.
Supporters argue
Supporters argue that unsolicited explicit images — commonly called "cyberflashing" — cause documented psychological harm to recipients, and that victims currently have no consistent federal civil remedy, leaving them dependent on a patchwork of state laws that vary widely in coverage and enforcement. They contend the bill's inclusion of AI-generated deepfake imagery addresses a rapidly growing harm, as studies show deepfake intimate images are overwhelmingly created to target women without their knowledge. The bipartisan sponsorship (Schatz and Blackburn) reflects broad consensus that this conduct warrants a federal response.
Opponents argue
Opponents argue that the bill's definition of "consent" — requiring affirmative, conscious, voluntary authorization — could expose senders to liability in common, ambiguous social contexts where consent is implied or assumed, potentially chilling ordinary digital communication. They contend that limiting remedies to direct transmissions while excluding publishing creates an inconsistent framework that may leave the most harmful conduct (public posting) unaddressed while burdening private exchanges. Critics may also argue that the $1,000 statutory damages cap is too low to deter well-resourced bad actors, while attorney fee provisions could make even minor violations disproportionately costly for individual defendants.
Constitutional context
The bill includes an explicit First Amendment savings clause, reflecting awareness that regulating the transmission of visual content implicates free speech protections. Congress's authority to regulate this conduct rests on the Commerce Clause, as the bill requires the transmission to occur "in or affecting interstate or foreign commerce." No active Supreme Court doctrine directly governs this specific type of civil liability, though the bill's treatment of AI-generated imagery may intersect with evolving First Amendment questions about synthetic media.
Checks and balances
The judiciary gains authority as the enforcement mechanism — federal district courts adjudicate claims, award damages, and issue injunctions — while Congress sets the liability framework; no executive agency is granted rulemaking or enforcement power under this bill.
Historical precedent
Several states, including Texas (2019) and Virginia (2019), have enacted laws specifically criminalizing cyberflashing or unsolicited explicit images, but no prior federal civil private right of action for this specific conduct exists.