Bill Text: NJ S1403 | 2012-2013 | Regular Session | Introduced
Bill Title: Requires interactive computer service to remove images, information, or data which depicts child engaged in prohibited sexual act from computer server or other storage device controlled or owned by the interactive computer service.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-06 - Introduced in the Senate, Referred to Senate Judiciary Committee [S1403 Detail]
Download: New_Jersey-2012-S1403-Introduced.html
Sponsored by:
Senator RONALD L. RICE
District 28 (Essex)
SYNOPSIS
Requires interactive computer service to remove images, information, or data which depicts child engaged in prohibited sexual act from computer server or other storage device controlled or owned by the interactive computer service.
CURRENT VERSION OF TEXT
As introduced.
An Act requiring the removal of certain images, information, or data by interactive computer services and supplementing Title 2A of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Child pornography" means: (1) an image, information, or data or any other reproduction or reconstruction which visually depicts a child engaged in a prohibited sexual act as defined in subsection b. of N.J.S.2C:24-4 or the simulation of such an act; or (2) an image, information, or data or any other reproduction or reconstruction which visually depicts an image which appears to be a child engaged in a prohibited sexual act or in the simulation of such an act if such depiction is obscene. For purposes of paragraph (2) of this definition, a depiction is obscene if: it depicts the prohibited sexual act in a patently offensive way; lacks serious literary, artistic, political, or scientific value, when taken as a whole; and is a part of a work which, to the average person applying contemporary community standards, has a dominant theme, taken as a whole, which appeals to the prurient interest;
"Controlled" or "owned," with respect to a computer server or other storage device, means a computer server or other device that is entirely owned by an interactive computer service or is subject to exclusive management by an interactive computer service;
"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions; and
"Internet" means the international computer network of both federal and nonfederal interoperable packet-switched data networks.
2. Whenever the Attorney General, a county prosecutor, or other law enforcement officer has reason to believe that child pornography resides on a computer server or other storage device controlled or owned by an interactive computer service, the Attorney General, county prosecutor, or law enforcement officer may, in the Attorney General's, county prosecutor's, or law enforcement officer's discretion:
a. contact the interactive computer service that controls or owns the computer server or other storage device where the child pornography resides;
b. inform the interactive computer service of the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill); and
c. request that the interactive computer service voluntarily comply with P.L. , c. (C. ) (pending before the Legislature as this bill) and remove the child pornography from its computer server or other storage device expeditiously, but in any case not more than 25 days following receipt of the request.
3. a. If the interactive computer service does not voluntarily remove the child pornography, the Attorney General or a county prosecutor may, in the Attorney General's or county prosecutor's discretion, apply for a court order authorizing the removal of the child pornography pursuant to the provisions of this section.
b. The application for a court order shall include:
(1) the authority of the applicant to make the application;
(2) a particular statement of the facts relied upon by the applicant, including:
(a) the identity of the interactive computer service;
(b) identification of the child pornography discovered residing on the computer server or other storage device controlled or owned by the interactive computer service, which shall include identification by uniform resource locator, Internet protocol address, or other appropriate electronic identifier, if available; and
(c) the steps taken to obtain voluntary compliance by the interactive computer service pursuant to the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) prior to filing the application;
(3) any information attributing the child pornography to a computer server or other storage device controlled or owned by the interactive computer service;
(4) a complete statement of the facts concerning all previous applications, known to the individual making the application, made to any court for authorization to remove child pornography involving the same interactive computer service or the same child pornography which is the subject of the present application, and the action taken by the court on each such application; and
(5) any additional information, testimony, or documentary evidence in support of the application as the judge may require.
4. a. Upon consideration of an application for authorization to remove the child pornography, the judge may enter an ex parte order, as requested or as modified, authorizing the removal of the child pornography, if the court determines on the basis of the facts submitted by the Attorney General or county prosecutor that there is probable cause to believe that:
(1) the image, information, data or other reproduction or reconstruction which forms the basis for the application constitutes child pornography as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) the child pornography resides on a computer server or other storage device controlled or owned by the interactive computer service and is accessible to persons located in the State; and
(3) in the case of an application, other than a renewal or extension, for an order authorizing the removal of child pornography which was the subject of a previous order authorizing its removal, the application is based upon new evidence or information different from and in addition to the evidence or information offered to support the prior order.
b. The order authorizing the removal of the child pornography shall include, but not be limited to:
(1) the name of the judge authorized to issue the order;
(2) the identity of the Attorney General, county prosecutor, or other law enforcement officer who applied for the court order;
(3) a particular description of the child pornography ordered to be removed, and identified by uniform resource locator, Internet protocol address, or other appropriate electronic identifier, if available;
(4) a statement concerning how the image, information, data or other reproduction or reconstruction constitutes child pornography as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill); and
(5) any additional information or instruction as the court deems necessary to execute the order.
c. Every order entered under this section shall require that the process for the interactive computer service to remove the child pornography residing on a computer server or other storage device controlled or owned by the interactive computer service begin and be completed expeditiously, but in any case not later than 25 days following receipt of the order. The order shall require that the process be conducted in such a manner as to minimize or eliminate the discovery of images, information, or data or any other reproduction or reconstruction residing on the computer server or other storage device not otherwise subject to removal under P.L. , c. (C. ) (pending before the Legislature as this bill).
d. Every order entered under this section shall also require that the removal of the child pornography not interfere, to the extent possible, with any request of a law enforcement agency to preserve records or other evidence pursuant to subsection g. of section 23 of P.L.1993, c.29 (C.2A:156A-29).
5. a. The Attorney General or county prosecutor shall, upon issuance of an order authorizing the removal of child pornography, immediately notify the interactive computer service which is identified in the court order. The notice shall include:
(1) a copy of the court order issued pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) notification of the right to appeal the court order in accordance with law and the rules governing the courts of this State; and
(3) notification of the criminal penalties, set forth in section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), for violating the provisions of the court order to remove the child pornography.
b. An interactive computer service may designate an agent within the State to receive notification pursuant to this section.
6. a. Except as provided in subsection b. of this section, the interactive computer service, upon receipt of the notice and court order from the Attorney General or county prosecutor, shall remove the child pornography that is the subject of the order expeditiously, but in any case not later than 25 days following receipt of the order.
b. An interactive service provider may appeal the order of the court issued pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) for relief from the order. The court shall grant relief based upon a showing of any of the following:
(1) the unreasonable cost or technical infeasibility of compliance with the order;
(2) the inability of the interactive computer service to comply with the order without also removing images, information, or data or any other reproduction or reconstruction not subject to removal under P.L. , c. (C. ) (pending before the Legislature as this bill); or
(3) the inability of the interactive computer service to comply with the order without interfering with a law enforcement investigation or with a request of a law enforcement agency to preserve records or other evidence pursuant to subsection g. of section 23 of P.L.1993, c.29 (C.2A:156A-29); or
(4) the image, information, data or other reproduction or reconstruction for which the court order authorized removal does not constitute child pornography as defined in section 1 of P.L. , c. (C. )(pending before the Legislature as this bill).
c. Any obligation by an interactive computer service to remove child pornography pursuant to court order shall not apply to the transmitting or routing of, or the intermediate, temporary storage or caching of an image, information, or data or any other reproduction or reconstruction that is otherwise subject to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
7. A violation of any of the provisions of any court order issued pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall constitute criminal contempt as set forth in N.J.S.2C:29-9 in addition to any other applicable crime or offense specified by law.
8. a. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be construed as imposing a duty on an interactive computer service to actively monitor its service or affirmatively seek evidence of criminal activity on its service.
b. An interactive computer service shall not be liable for any action taken in good faith to comply with a court order or a request for voluntary removal of child pornography to satisfy the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
9. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to prohibit, limit or restrict any law enforcement investigation or prosecution of child pornography, computer criminal activity, or any other crime or offense specified by law. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to immediately require law enforcement officers to apply for a court order for removal of child pornography pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
10. This act shall take effect on the 30th day following enactment.
STATEMENT
This bill provides that if the Attorney General, a county prosecutor, or other law enforcement officer has reason to believe child pornography resides on a computer server or other storage device controlled or owned by an interactive computer service, commonly referred to as an "Internet service provider" (ISP), the officer may request the ISP to voluntarily remove the child pornography. If the ISP does not take any voluntary action within 25 days after receipt of such a request, the Attorney General or county prosecutor may, in their discretion, apply for a court order authorizing the removal of the child pornography.
APPLICATION BY PROSECUTOR: Section 3 of the bill permits the Attorney General or a county prosecutor to make an ex parte application to a court to receive an order of authorization to remove the item of child pornography if there is no voluntary compliance.
COURT ORDER: Section 4 of the bill provides the court may enter an ex parte order, as requested or modified, once the court determines there is probable cause that the information or data forming the basis for the application constitutes child pornography as defined in the bill, that it resides on an electronic server or other storage device controlled or owned by the ISP, and it is accessible to persons located in this State. The order must include a particular description of the item of the child pornography ordered to be removed, and identified by uniform resource locator (URL), Internet protocol (IP) device, or other appropriate electronic identifier, if available. The order would include a statement concerning how the data constitutes child pornography.
The order would also require that the process utilized by the ISP to remove the item minimize or eliminate the discovery of images, information, or data not subject to removal under the bill and a requirement that the removal of the child pornography not interfere with any request of a law enforcement agency to preserve records or other evidence related to a law enforcement investigation.
NOTICE TO ISP: Section 5 of the bill establishes requirements for notice of a court order to the ISP.
APPEAL BY ISP: Section 6 of the bill sets forth grounds upon which an ISP may appeal the court order, including unreasonable cost of compliance, technical inability to comply, or removal causing interference with a law enforcement investigation.
PENALTIES: A violation of any of the provisions of any court order issued pursuant to the bill would constitute criminal contempt.
IMMUNITY FOR ISP: Section 8 of the bill provides immunity to the ISP for actions in good faith compliance with a court order. It also specifies that the bill does not obligate the ISP to monitor possible criminal activity.
ADDITIONAL LAW ENFORCEMENT CONCERNS: The bill also clarifies that the bill's provisions shall not be construed to restrict any law enforcement investigation into child pornography or to immediately require law enforcement officers to apply for a court order for removal of child pornography.
