Amendment vs bill Amendment MID7H1-1 vs Engrossed

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HB298 ENGROSSED SHXZ77-2 By Representatives Sells, Mooney, Whorton, Paschal, Fincher, 3 Harrison, Gidley, Butler, Lamb, Bedsole, Stadthagen, Kirkland, Hammett, Bolton, Hurst, Givens, Fidler, Underwood, Lee, Cole, Whitt, Rigsby, Marques, Smith, Oliver, Pettus, Standridge, McClammy, Hollis, Brown, Carns, Reynolds, Sorrells, Estes, Moore (P), Shaver, Rehm, Ingram, Hulsey, Ellis, Lomax, Woods, Lipscomb, Crawford, Shedd, Robertson, Wood (D), Baker, Stubbs, Easterbrook, Stringer, Paramore, Collins, DuBose, Hassell, Travis, Drummond, Plump, Lawrence RFD:
MID7H1-1 05/16/2023 CMH (L) bm 2023-2101 SUB HB298 SUBSTITUTE TO HB298 OFFERED BY REPRESENTATIVE ROBBINS SUBSTITUTE TO HB298 OFFERED BY REPRESENTATIVE ROBBINS 2 4 SYNOPSIS:
Commerce and Small Business First Read:
This bill would provide legislative findings regarding the public health crisis caused by pornography.
12-Apr-23 2023 Regular Session Page 0 HB298 Engrossed 2 4 A BILL TO BE ENTITLED AN ACT 9 Relating to consumer protection;
This bill would prohibit the distribution of material harmful to minors under 18 years of age.
to require certain manufacturers of Internet-enabled devices to activate existing filters to restrict access to certain material;
This bill would require distributors of material harmful to minors to take certain reasonable measures to ensure their published material is not distributed to minor children by use of age-verification procedures and would provide penalties for violations.
to provide for a cause of action;
This bill would prohibit a distributor of material harmful to minors which performs any required online age verification from retaining any personally identifying information of the individual accessing the material and would provide penalties for a violation.
to provide civil penalties.
This bill would require distributors of material harmful to minors to pay a licensing fee to distribute pornography in this state and would provide for the distribution of the fee.
This bill would provide penalties for violations.
Section 111.05 of the Constitution of Alabama of 2022, prohibits a general law whose purpose or effect Page 1 would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless:
it comes within one of a number of specified exceptions;
it is approved by the affected entity;
or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.
The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment.
However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.
A BILL TO BE ENTITLED AN ACT Relating to consumer protection;
to provide legislative findings;
to provide definitions;
to provide prohibitions on the online distribution of material harmful to minors;
to provide registration and age-verification requirements;
to prohibit the retention of certain personally identifying information;
to provide civil and criminal penalties for Page 2 violations;
and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Section 111.05 of the Constitution of Alabama of 2022.
This act shall be known and may be cited as the Protection of Minors from Unfiltered Devices Act.
The Legislature finds and declares the following:
Section 2.
(1) The pervasive use of pornography is creating a public health crisis.
(2) Pornography is contributing to the hypersexualization of children and teens in our society.
(3) Due to advances in technology and the universal availability of the Internet, young children are more easily exposed to pornography than ever before, with the average age of exposure now being only 11 to 12 years of age.
(4) Pornography treats people as objects and commodities for the viewer's use.
(5) Pornography normalizes violence and abuse, often depicts rape and abuse as being harmless fun, and increases the demand for sex trafficking, prostitution, and child pornography.
(6) Pornography is a public health crisis leading to a broad spectrum of individual and public health impacts and societal harms.
This state has a compelling governmental interest to take action, and this act serves as the most narrowly tailored approach to prevent pornography exposure and addiction to children and to educate individuals and families concerning its very serious harms.
Page 3 Section 2.
(2) DEVICE.
(2) COMMERCIAL ENTITY.
A tablet or a smart phone manufactured on or after the operative date of this act as provided in Section 7.
The term includes corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized entities.
(3) FILTER.
(3) DISTRIBUTE.
To issue, sell, give, provide, deliver, transfer, circulate, or disseminate online.
(4) DIVISION.
The Consumer Protection Division of the Office of the Attorney General.
(5) FILTER.
(4) HARMFUL TO MINORS.
(6) HARMFUL TO MINORS.
Any description or representation, in whatsoever form, of nudity, sexual conduct, Page 1 HB298 Engrossed sexual excitement, or sadomasochistic abuse when it:
The term as defined under Section 13A-12-200.1, Code of Alabama 1975.
a.
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Taken as a whole, appeals to the prurient interest of minors;
b.
is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors;
and c.
taken as a whole, does not have serious value for minors, which includes only serious literary, artistic, political, or scientific value for minors.
(5) INTERNET.
The global information system that is logically linked together by a globally unique address space based on the Internet protocol (IP), or its subsequent extensions, and that is able to support communications using the transmission control protocol/Internet protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high-level services layered on communications and related infrastructure.
(6) MANUFACTURER.
A person or entity to which both of the following apply:
a.
Is engaged in the business of manufacturing a device or holds the patents for the device it manufactures.
b.
Has a commercial designated registered agent as provided under Section 10A-1-5.31, Code of Alabama 1975.
An individual under the age of 19 years who is not emancipated, married, or a member of the armed forces of the United States.
An individual under 18 years of age.
(8) PASSWORD.
(8) NEWS-GATHERING ORGANIZATION.
A string of characters or other secure method used to enable, deactivate, modify, or uninstall a filter on a device.
Any of the following:
Page 2 HB298 Engrossed (9) SMART PHONE.
An electronic device that combines a cell phone with a handheld computer, typically offering Internet access through a browser or search engine, data storage, and text and email capabilities.
(10) TABLET.
A mobile device that is equipped with a mobile operating system, touchscreen display, and rechargeable battery;
and that has the ability to support access to a cellular network.
Section 3.
Beginning January 1 2024, a manufacturer shall manufacture a device that, when activated in this state, shall automatically enable a filter that does all of the following:
(1) When enabled, prevents the user from accessing material that is harmful to minors on any of the following:
Mobile data networks.
A newspaper, news publication, or news source, printed or on an online platform, of current news and public interest.
Internet browsers or search engines.
A radio broadcast station, television broadcast station, or cable television operator.
c.
(9) PUBLISH.
Wired Internet networks.
To communicate or make information available to another person on a publicly available Internet website.
d.
Page 4 (10) REASONABLE AGE-VERIFICATION METHODS.
Wireless Internet networks.
Verifying that the individual seeking to access the material is 18 years of age or older by requiring the person attempting to access the material to comply with a commercial age-verification system that verifies age in any commercially reasonable method that relies on public or private transactional data to verify the age of the individual attempting to access the information is at least 18 years of age or older.
(2) Notifies the user of the device when the filter blocks the device from accessing a website.
(11) SMART PHONE.
(3) Gives a user with a password the opportunity to unblock a filtered website.
An electronic device that combines a cellular phone with a handheld computer, typically offering Internet access through a browser or search engine, data storage, and text and email capabilities.
(4) Reasonably precludes a user, other than a user with a password, the opportunity to deactivate, modify, or uninstall the filter.
(12) SUBSTANTIAL PORTION.
More than 33 1/3 percent of total material on a website.
(13) TABLET.
A mobile device that is equipped with a mobile operating system, touchscreen display, and rechargeable battery, and that has ability to support wireless access to the Internet.
(14) TRANSACTIONAL DATA.
A sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event.
The term includes, but is not limited to, records from mortgage, education, and employment entities.
Section 3.
(a) Any commercial entity that knowingly and intentionally publishes or distributes material harmful to a minor on the Internet from a website that contains a substantial portion of material harmful to minors shall be Page 5 held liable if the entity fails to perform reasonable age-verification methods to verify the age of individuals attempting to access the material.
(b) A commercial entity that is found to have violated this section shall be liable to an individual for damages resulting from a minor accessing the material harmful to minors, including court costs and reasonable attorney fees as ordered by the court.
(a) A manufacturer of a device is liable to a minor in this state if all of the following occur:
(a) Any commercial entity or third party that performs the required age-verification under this act shall not retain any personally identifying information of the individual after access has been granted to the material.
(1) The device is activated in this state.
(b) A commercial entity that is found to have knowingly retained identifying information of the individual, as prohibited in subsection (a), shall be liable to the individual for damages resulting from retaining the identifying information, including court costs and reasonable attorney fees as ordered by the court.
Page 3 HB298 Engrossed (2) The device does not, upon activation in this state, enable a filter that complies with the requirements described in Section 3.
(3) The minor accesses material that is harmful to minors on the device.
(b) Nothing in this act affects any private right of action existing under other law, including contract.
(c) Notwithstanding subsection (a), this section does not apply to a manufacturer that makes a good faith effort to provide a device that, upon activation of the device in this 95 state, automatically enables a generally accepted and commercially reasonable method of filtration in accordance with this act and industry standards.
(d) Nothing in this act shall be construed to create a cause of action against the retailer of a device.
If a court finds that a manufacturer is liable under Section 4, the court may award the plaintiff actual damages.
Nothing in this act shall apply to a bona fide broadcast, website video, report, or event of a news-gathering organization and shall not be construed to affect the rights of any news-gathering organization.
(a) When the Attorney General has reason to believe that a person has violated or is violating this act, the Attorney General, acting in the public interest, may bring an action in the name of the state against the person to do any of the following:
No Internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated this act solely for providing access or connection to or from a website or other information or content on the Internet or a facility, system, or network not under that provider's control, including Page 6 transmission, downloading, intermediate storage, or access software to the extent the provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors.
(1) To enjoin any action that constitutes a violation of this act by issuance of a temporary restraining order or preliminary or permanent injunction.
(2) To recover from the alleged violator a civil Page 4 HB298 Engrossed penalty not to exceed five thousand dollars ($5,000) per violation and not to exceed a total of fifty thousand dollars ($50,000) in aggregate, as determined by the court.
(3) To recover from the alleged violator the Attorney General's reasonable expenses, investigative costs, and attorney's fees.
(4) To obtain other appropriate relief as provided under this act.
(b) The Attorney General may issue a subpoena to any person and conduct hearings in aid of any investigation or inquiry conducted under this act.
(c) The Attorney General may seek the revocation of any license or certificate authorizing a manufacturer to engage in business in this state.
(d) For purposes of assessing a penalty under this section, a manufacturer is considered to have committed a separate violation for each device manufactured on or after January 1 of the year following the effective date of this act.
(a) Any parent or legal guardian of a minor who accesses pornographic content that is harmful to minors, which content is accessible as a result of a violation of this act, may bring a private cause of action in any court of competent jurisdiction against a manufacturer who manufactured a device in violation of this act.
(a) A commercial entity described in Section 3(a) shall do both of the following:
(b) A prevailing plaintiff may recover all of the following:
(1) Register with the division and pay to the division a one-time registration fee and an annual license fee each year thereafter.
(1) Actual damages;
The division, by rule, may establish the required fees.
or, in the discretion of the court, Page 5 HB298 Engrossed when actual damages are difficult to ascertain due to the nature of the injury, liquidated damages in the amount of fifty thousand dollars ($50,000) for each violation.
(2) Certify to the division that the commercial entity meets the age-verification requirements of Section 3.
(2) When the violation is found by clear and convincing evidence to be knowing and willful, punitive damages in an amount determined by the court.
(b) Any fees collected under this section shall be deposited as follows and shall be budgeted and allotted in accordance with Sections 41-4-80 through 41-4-96, Code of Alabama 1975, and Sections 41-19-1 through 41-19-12, Code of Alabama 1975, but shall not be limited by the fiscal year appropriation cap:
(3) Nominal damages.
(1) Fifty percent of fees collected shall be deposited into the State General Fund to the credit of the Office of the Attorney General.
(4) Court costs, attorney's fees, and other relief as the court deems appropriate.
(2) Fifty percent of fees collected shall be deposited into the Special Mental Health Trust Fund in the State Treasury.
(c) Nothing in this act shall authorize the bringing of a class action lawsuit.
(c) The Office of the Attorney General may adopt rules to implement and administer this section.
(a) Any person that engages in any act or practice that violates Section 3 or Section 4 shall be liable Page 7 for a civil penalty of up to two thousand dollars ($2,000) for each violation.
(b) The Office of the Attorney General may recover the civil penalty by either of the following:
(1) Civil action against the person engaging in the violation.
(2) Agreement and settlement of a civil action filed by stipulation of terms by the person engaging in the violation and the director of the division by authority of the Attorney General, and by payment of any agreed upon amount by the person against whom the claim was filed.
Section 9.
(a) If the Attorney General has reason to believe that a person has engaged in, or is engaging in, a practice that violates Section 3 or Section 4, he or she may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence.
The subpoena shall inform the party served of his or her rights under this subsection.
(b) The Attorney General may apply for an emergency injunction or other necessary relief to enjoin any violation of Section 3 or Section 4 until the violation is cured.
Section 10.
(a) In any civil action or investigation involving a violation of Section 3 or Section 4, except as provided in subsection (b), the Office of the Attorney General shall receive reasonable attorney fees and costs from the nonprevailing party.
(b) In any civil litigation initiated by the division resulting in a judgment or administrative order, the court may award to the prevailing party reasonable attorney fees and Page 8 costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or if the court finds bad faith on the part of the losing party.
(c) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred.
Section 11.
In addition to any other penalty, any violation of Section 3 or Section 4 shall be considered a violation of the Deceptive Trade Practices Act, Chapter 19, Title 8, Code of Alabama 1975.
Section 12.
The provisions of this act are severable.
If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.
Section 13.
Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Section 111.05 of the Constitution of Alabama of 2022, because the bill defines a new crime or amends the definition of an existing crime.
Section 14.
Page 6 HB298 Engrossed House of Representatives Read for the first time and referred ................12-Apr-23 to the House of Representatives committee on Commerce and Small Business Read for the second time and placed ................27-Apr-23 on the calendar:
Page 9
amendments Read for the third time and passed ................16-May-23 as amended Yeas 70 Nays 8 Abstains 24 John Treadwell Clerk Page 7