(1) A person commits the crime of disclosing fabricated intimate images when the person knowingly discloses a fabricated intimate image of another person and the person disclosing the image:
(a) Knows or should have known that the depicted person has not consented to the disclosure; and
(b) Knows or reasonably should know that disclosure would cause harm to the depicted person.
(2) A person who is under the age of 18 is not guilty of the crime of disclosing fabricated intimate images unless the person:
(a) Intentionally and maliciously disclosed a fabricated intimate image of another person; and
(b) Knows or should have known that the depicted person has not consented to the disclosure.
(3) This section does not apply to:
(a) Disclosures made in the public interest including, but not limited to, the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment; or
(b) Images that constitute commentary, criticism, or disclosure protected by the Washington state Constitution or the United States Constitution.
(4) This section does not impose liability upon the following entities solely as a result of content provided by another person:
(a) An interactive computer service, as defined in Title 47 U.S.C. Sec. 230(f)(2);
(b) A mobile telecommunications service provider, as defined in RCW
82.04.065; or
(c) A telecommunications network or broadband provider.
(5) In any prosecution for a violation of this section, it is not a defense that:
(a) The perpetrator lacked knowledge of whether the disclosed image had been created or altered by digitization; or
(b) The depicted person consented to the creation or alteration of the image.
(6) For purposes of this section:
(a) "Digitization" means creating or altering an image of a person in a realistic manner utilizing images of another person or computer-generated images, regardless of whether such creation or alteration is accomplished manually or through an automated process. "Digitization" includes, but is not limited to, creation or alteration of an image by using artificial intelligence.
(b) "Disclosing" includes transferring, publishing, or disseminating, as well as making a digital depiction available for distribution or downloading through the facilities of a telecommunications network or through any other means of transferring computer programs or data to a computer.
(c) "Fabricated intimate image" means any photograph, motion picture film, videotape, digital image, or any other recording or transmission of another person who is identifiable from the image itself or from information displayed with or otherwise connected to the image, and that was created or altered by digitization to depict:
(i) Computer-generated intimate body parts or the intimate body parts of another person as the intimate body parts of the depicted person, whether nude or visible through less than opaque clothing and including the genitals, pubic area, anus, or postpubescent female nipple; or
(ii) The depicted person engaging in sexual activity, including masturbation, sexual contact, or sexual intercourse, as those terms are defined in RCW
9A.44.010, in which the depicted person did not actually engage.
(7) The crime of disclosing fabricated intimate images:
(a) Is a gross misdemeanor on the first offense; or
(b) Is a class C felony if the defendant has one or more prior convictions for a violation of this section or RCW
9A.86.010.
(8) Nothing in this section is construed to:
(a) Alter or negate any rights, obligations, or immunities of an interactive service provider under Title 47 U.S.C. Sec. 230; or
(b) Limit or preclude a plaintiff from securing or recovering any other available remedy.
