WEST virginia legislature
2019 regular session
Introduced
Senate Bill 523
[Introduced February
5, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §61-8F-1, §61-8F-2, §61-8F-3,
§61-8F-4, §61-8F-5, §61-8F-6, §61-8F-7, §61-8F-8, and §61-8F-9, all relating
to prohibiting retailers from selling or leasing products that make content
accessible on the Internet, unless the product contains an active and operating
digital blocking capability that renders websites displaying obscene material
or website that facilitates human trafficking inaccessible by default; defining
terms; establishing a fee; creating a special fund; designating how moneys from
the fund may be spent; providing for injunctive relief and civil actions;
creating a duty for organization to report; establishing an affirmative
defense; establishing criminal penalties; providing exemptions; and establishing
conditions upon which law would become effective.
Be it enacted by
the Legislature of West Virginia:
ARTICLE 8F.
RETAILERS REQUIRED TO ENSURE CERTAIN PRODUCTS CONTAIN DIGITAL BLOCKING
CAPABILITY.
§61-8F-1.
Definitions.
In this article:
“Consumer” means
an individual who purchases or leases for personal, family, or household
purposes a product that makes content accessible on the Internet.
“Obscene” has
the meaning assigned by §8-12-5b of this code.
“Retailer” means
a person who is engaged in the business of selling or leasing directly to a
consumer a product that makes content accessible on the Internet.
§61-8F-2.
Digital blocking capability.
(a) Except as provided
by subsection (d) of this section, a retailer may not sell or lease to a
consumer a product that makes content accessible on the Internet unless the
product contains an active and operating digital blocking capability that
renders all websites displaying obscene material or all websites known to
facilitate prostitution and human trafficking inaccessible by default.
(b) The digital blocking capability:
(1) Must block
access to websites displaying child pornography, revenge pornography, and
websites known to facilitate prostitution and human trafficking;
(2) May not
block access to social media websites that provide a means for the website’s
users to report obscene material and have in place procedures for evaluating
those reports and removing obscene material;
(3) Must not
block websites that serve primarily as a search engine;
(4) Must not
block websites that display complete movies that are rated R and below by the
Classification and Ratings Administration.
(5) Must be
distributed by an entity that:
(A) Regularly
makes available to consumers updates to the digital blocking capability’s
filters to ensure the filters’ effectiveness in blocking access to a website
displaying obscene material;
(B) Maintains a
website or telephone line that consumers can use to report:
(i) A website
displaying obscene material that is not blocked by the digital blocking
capability’s filters;
(ii) A website
that is not displaying obscene material but is blocked by the digital blocking
capability’s filters; and
(C) Has in place
procedures for evaluating reports made under paragraph (B) of this subdivision
and, if necessary, updating the digital blocking capability’s filters in a
reasonable amount of time.
(c) Except as
provided by subsection (d) of this section, a retailer may not provide to a
consumer, methods, source code, or other operating instructions for
deactivating a product’s digital blocking capability.
(d) A retailer
may deactivate a product’s digital blocking capability if the consumer who
purchased or leased the product:
(1) Requests
that the digital blocking capability be deactivated;
(2) Presents
identification verifying that the consumer is at least 18 years of age;
(3) Acknowledges
a warning regarding the potential danger of deactivating the digital blocking
capability; and
(4) Pays a
one-time fee of $20 to be remitted to the “Human Trafficking And Child
Exploitation Prevention Grant Fund.”
(e) The digital
access fee in paragraph (4) subsection (d) in this section is not content based
but charged and remitted to the state to offset secondary harmful effects and
to help the state bear the costs of upholding community standards of decency
and to combat sex related crimes.
(f) Nothing in
this act shall be construed to prevent a seller from charging a reasonable
separate fee to deactivate the digital blocking capability for profit in
addition to the requirement under paragraph (4) of subsection (d) of this
section, which it may retain.
§61-8F-3.
Remission and use of fee.
(a) Each
quarter, a retailer shall remit the fee collected under §61-8F-2(d)(4) of this
code to the State Treasurer in the manner prescribed by the Treasurer.
(b) The State
Treasurer shall deposit the fee to the credit of a newly created as a special
fund in the State Treasury entitled the “Human Trafficking And Child
Exploitation Prevention Grants Fund.” Money deposited to that fund may be used
only by:
(1) The Attorney
General shall provide grants to government and nongovernment entities and
individuals that are working to uphold community standards of decency, to
strengthen families and to develop, expand, or strengthen programs for victims
of human child exploitation. This includes providing grants for:
(i) Rape-kit
testing;
(ii) Physical
and mental health services;
(iii) Temporary
and permanent housing placement;
(iv) Employment,
placement, education, training;
(v) Prevention
of and protection from human trafficking, domestic violence, prostitution,
divorce child abuse, and rape by training first responders and by increasing
public awareness;
(vi) Independent
school districts;
(vii) Victims
compensation;
(viii) Shelters
and dream centers;
(ix) Family
counseling;
(x) Law
enforcement;
(xi) Musical,
writing, design, cinematic, or pictorial creative art projects that promote
decency;
(2) The
Department of Health and Human Resources for grants to support programs
assisting victims of human trafficking and other sex crimes and to uphold
community standards of decency;
(3) The office
of the Governor for grants to support human trafficking prosecution projects
and to uphold community standards of decency; and
(4) Any state
agency or organization for the purpose of conducting human trafficking
enforcement programs and to uphold community standards of decency.
§61-8F-4.
Injunction and civil action.
(a) If the
digital blocking capability blocks a website that is not displaying obscene
material and the block is reported to a call center or reporting mechanism, the
website must be unblocked within a reasonable time, but in no event later than
five business days after the block is first reported.
(b) A consumer
may seek judicial relief to unblock a filtered website that is not subject to
this chapter. The prevailing party in civil litigation seek attorney fees,
costs, and other forms of relief.
(c) If a
retailer who manufactures, sells, offers for sale, leases, or distributes a
product that makes content accessible on the Internet is unresponsive to a
report of a website displaying obscene material that has breached the filter,
the Attorney General or a consumer may file a civil suit. The Attorney General
or a consumer may seek damages of up to $500 for each website that was reported
but not subsequently blocked. The prevailing party in the civil action may seek
attorneys’ fees, costs, and other forms of relief. Any award recovered by the
Attorney General will be deposited into the Human Trafficking And Child
Exploitation Grants Fund created under §61-8F-3(b) of this code.
§61-8F-5.
Affirmative Defense.
It shall be an
affirmative defense in civil action to a charge of violating this chapter that
the dissemination of the content described in §61-8F-1 and §61-8F-2 of this
code was limited to institutions or organizations having scientific,
educational, or other similar justifications for displaying the material
covered by §61-8F-1 and §61-8F-2 of this code.
§61-8F-6.
Duty To Report Child Pornography To The National Center For Missing And
Exploited Children’s Cyber Tip Line.
A business
organization that manufactures, distributes, or sells any product that makes
accessible any content on the Internet that receives child pornography through
the consumer reporting Internet site or call center shall report the content to
the National Center For Missing and Exploited Children’s Cyber Tip Line in
accordance with 18 U.S.C. § 2258A.
§61-8F-7.
Penalties.
(a) A retailer
that sells or leases to a consumer a product that makes content accessible on
the Internet that knowingly fails to install and activate blocking software
that makes an attempt to block websites displaying obscenity, child pornography
revenge pornography or websites that are known to facilitate human trafficking
and prostitution is guilty of a misdemeanor and, upon conviction, shall be
fined not more than $1,000 or confined in jail not more than six months.
(b) With the
consent of the appropriate local prosecuting attorney, the Attorney General has
concurrent jurisdiction with that consenting local prosecutor to prosecute an
offense under this section.
(c) Fines
collected under this section shall be deposited in the “Human Trafficking and
Child Exploitation Prevention Grant Fund” established under §61-8F-3(b) of this
code.
§61-8F-8.
Exemptions.
(a) This act
shall not apply to an occasional sale of an Internet enabled device by a person
that is not regularly engaged in the trade business of selling Internet enabled
devices.
(b) This act
does not retroactively apply to products made or sold before enactment.
(c) This act
only applies to retailers that are within this state’s jurisdiction.
§61-8F-9.
Effective date.
This article
takes effect for and on behalf of the State of West Virginia only from and
after the passage, approval, ratification, and adoption, by five other states.
Within 10 days of the date that the five states adopt this legislation, the
Attorney General shall advise the Governor, the Speaker of the House of
Delegates, and the President of the Senate of the effective date of this
article.
NOTE: The purpose of this
bill is to prohibit retailers from selling or leasing products that make
content accessible on the Internet, unless the product contains an active and
operating digital blocking capability that renders obscene material
inaccessible.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.