Bills We Tracked 2017

1. The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

2. Depicts or describes, in a patently offensive way, sexual conduct or excretory functions;

3. Taken as a whole, lacks serious literary, artistic, political, or scientific value; and, 4. Facilitates or promotes prostitution, assignation, human trafficking, or “sexual cyberharassment.”
“Sexual cyberharassment” is defined as publishing a sexually explicit image of a person that contains or conveys the identification information of the depicted person to a website without the depicted person’s consent, for no legitimate purpose, with the intent of causing emotional distress to the depicted person. Sale of a device without a filter to an adult is a misdemeanor. Sale of a device without a filter to a minor is a felony.

The Attorney General may also seek injunctive relief for sale of a device without a filter. Filters may be deactivated if the owner of the device:

1. Requests in writing that it be deactivated.

2. Verifies that he or she is 18 years old or older.

3. Acknowledges receiving a written “warning” of the potential danger of deactivating the filter.

4. Pays a $20 tax to the business, which must be remitted to the state.

The seller may impose an additional “reasonable” fee. Other requirements in the legislation for covered businesses:

1. Send out regular updates to “ensure the quality and performance of the filter” in blocking obscene content.

2. Establish a reporting website or call center so consumers can report failure to block obscene material.

3. Allow consumers to report filtering of non-obscene material.

4. Set up a review process to determine if material that should have been blocked was not or was not blocked that should have been. The business must send out updates to   the filtering software to correct any under filtering. It’s not clear that they have to do so if they over filter.

The Attorney General or the owner of the device can sue bring a civil action if the seller does not respond to a report of failing to block obscene content. Either party can recover $500 for each item that was reported but was not blocked. The court can also require the seller to reimburse the owner for the cost of the device and reasonable legal fees.

If the seller fails to unblock material that is not obscene in a reasonable time, declaratory judgement may be sought to unblock the content. The court may also award legal fees but the legislation does not allow for recovery of damages. Websites exempt from filtering: A covered business shall not filter a commercial social networking site if it has a call center or reporting website and is “proactive” in removing obscene material once it has been reported.

It also will recommend legislation to implement methods to improve the safety of children using the Internet and electronic communication devices.

The appointees to the commission are mostly to be drawn from health and education backgrounds but there is a slot of a “member with an organization focused on civil liberties, including freedom of speech, appointed by the Speaker of the House of Representatives.”  There is also a slot of someone representing ISPs and the phone companies.
The commission must submit its findings to the legislature by the end of the 2018 legislative session.

It is already illegal under Arkansas law to communicate in such a manner by telephone, telegraph, mail or any other form of written form of communication.

Anyone who knowingly directs, assists, compensates, or induces another person to violate this section is jointly liable.

The bill is modeled on a North Carolina law that has been challenged in federal court.

Sale or distribution of a device without a filter to an adult is subject to up to a year in prison and up to a $1,000 fine.

Sale or distribution of any device without a filter to a minor is subject to 5 years in prison and a $5,000 fine. Filters may be deactivated if:

      1. The consumer specifically requests in writing that it be deactivated

      2. The business verifies in a face to face meeting with the consumer in person or through electronic means that the consumer is 18 years old or older.

      3. The customer acknowledges receiving a written “warning” of the potential danger of deactivating the filter.

      4. The consumer pays a $20 tax to the business (which must be remitted to the state).

The state has an elaborate reporting scheme that the Chief Financial Officer of the business must follow. Other requirements in the legislation for covered businesses:

1. Send out regular updates to “ensure the quality and performance of the filter.”

2. Establish a reporting website or call center so consumers can report failure to block harmful to minors material.

3. Allow consumers to report filtering of non-obscene material.

4. Set up a review process to determine if material that should have been blocked was not or was not blocked that should have been. The business must send out updates to the filtering software to correct any under filtering. It’s not clear that they have to do so if they over filter.

Failure to do these things is subject to a civil cause of action by the consumer. The Attorney General can sue for failing to act in a timely manner on reports of under filtering or failing to send out updates to software to correct under filtering.

Websites exempt from filtering: A covered business shall not filter a commercial social networking site if it has a call center or reporting website and is “proactive” in removing obscene material once it has been reported.

Sale or distribution of a device without a filter to an adult is subject to up to a year in prison and up to a $1,000 fine.

Sale or distribution of any device without a filter to a minor is subject to 5 years in prison and a $5,000 fine.

Filters may be deactivated if:

1. The consumer specifically requests in writing that it be deactivated
2. The business verifies in a face to face meeting with the consumer in person or through electronic means that the consumer is 18 years old or older.
3. The customer acknowledges receiving a written “warning” of the potential danger of deactivating the filter.
4. The consumer pays a $20 tax to the business (which must be remitted to the state).

The state has an elaborate reporting scheme that the Chief Financial Officer of the business must follow.

Other requirements in the legislation for covered businesses:

1. Send out regular updates to “ensure the quality and performance of the filter.”
2. Establish a reporting website or call center so consumers can report failure to block harmful to minors material.
3. Allow consumers to report filtering of non-obscene material.
4. Set up a review process to determine if material that should have been blocked was not or was not blocked that should have been. The business must send out updates to the filtering software to correct any under filtering.  It’s not clear that they have to do so if they over filter.

Failure to do these things is subject to a civil cause of action by the consumer. The Attorney General can sue for failing to act in a timely manner on reports of under filtering or failing to send out updates to software to correct under filtering.

Websites exempt from filtering: A covered business shall not filter a commercial social networking site if it has a call center or reporting website and is “proactive” in removing obscene material once it has been reported.

Filters may be deactivated if:

1. The consumer specifically requests in writing that it be deactivated.

2. The business verifies in a face to face meeting with the consumer in person or through electronic means that the consumer is 18 years old or older.

3. The customer acknowledges receiving a written “warning” of the potential danger of deactivating the filter.

4. The consumer pays a $20 tax to the business (which must be remitted to the state).

Other requirements in the legislation for covered businesses:

1. Send out regular updates to “ensure the quality and performance of the filter.”

2. Establish a reporting website or call center so consumers can report failure to block harmful to minors material.

3. Allow consumers to report filtering of non-obscene material.

4.  Set up a review process to determine if material that should have been blocked was not or was not blocked that should have been. The business must send out updates to the filtering software to correct any under filtering.  It’s not clear that they have to do so if they over filter.

The Attorney General or any district attorney can to enforce the provisions of the legislation. A consumer can sue for damages due to a violation of the act.

Websites exempt from filtering: A covered business shall not filter a commercial social networking site if it has a call center or reporting website and is “proactive” in removing obscene material once it has been reported.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise a product or service that a minor is prohibited by law from purchasing including material harmful to minors. There is no list of specific products or services.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to blocked address if an adult uses and verifies his or her age.

A violation of the law is a misdemeanor and is subject to a civil action by the parent or guardian of the minor.

H.B. 1091 would make it a crime to access such material.

The attorney general must create and update the list on a regular basis. Once every 30 days, the attorney general must transmit an updated list to manufacturers and distributors of devices. The manufacturers and sellers must then update their software to block sites on the updated list.

However the list shall exclude any social media web sites that maintain “in good faith” its own filter for harmful to minors and obscene content.

A person that manufactures or distributes an Internet enabled device may not disable the blocking software unless all the following apply:
1. The consumer requests in writing that the blocking software be disabled.
2. The manufacturer, seller, or distributor verifies that the consumer is at least 18 years of age.
3. The consumer receives, and acknowledges in writing the receipt of, a written document  describing the potential danger of deactivating the blocking software.
4. The consumer pays a twenty dollar ($20) deactivation fee.

The attorney general will develop and distribute a written document that describes “the dangers of deactivating the software” to be provided to anyone who seeks to have the software deactivated.

Also, the attorney general must receive and investigate any complaint that a particular website should not be blocked. If the attorney general determines that the site should not have been blocked, the he or she must inform manufactures and distributors of devices that allow internet access to unblock the site.

Nudity is defined as the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

There are no requirement that the photo be posted without consent.

H.B. 1552 also makes it a crime of harassment to communicate with another person electronically if it is done with an intent to harass, annoy, defame, ridicule, or alarm another person but with no intent of legitimate communication.

Existing law already makes it a crime to communicate in that fashion with an intent to harass, annoy or alarm the other person.  This bill adds defame and ridicule.

“Full or partial nudity” is defined as “any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of a female, with less than fully opaque covering.”

There is an exception for disclosures in the public interest, but the list of such disclosures refers to reporting a crime, normal police work and medical treatment.

Anyone who commits the crime would be required to register as a sex offender if the fact finder determines, beyond a reasonable doubt, that the violation was sexually motivated.

“Full or partial nudity” is defined as “any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of a female, with less than fully opaque covering.”

There is an exception for disclosures in the public interest, but the list of such disclosures refers to reporting a crime, normal police work and medical treatment.

Anyone who commits the crime would be required to register as a sex offender if the fact finder determines, beyond a reasonable doubt, that the violation was sexually motivated.

The retailer or manufacturer of the device “shall prioritize” blocking access to child pornography, “revenge pornography” and “any website known to facilitate prostitution or human trafficking.” The legislation does not define these terms or what is meant by “prioritizing” the blocking of the content.

Sale of a device without a filter to an adult is subject to a $500 fine. A sale to a minor is subject to up to six months in jail, a fine of $4,000, or both.
Filters may only be deactivated if the person who purchased or leased it:

1. Requests in writing that it be deactivated;

2. Presents identification proving the customer is an adult;

3. Acknowledges receiving a written “warning” of the danger of deactivating the filter; and

4. Pays a $20 tax plus any additional “reasonable” fee imposed by the seller.

Additional requirements in the legislation for either the manufacturer or retailer:

1. Send out regular updates to consumers to ensure the effectiveness of blocking obscenity.

2. Establish a reporting website or call center so consumers can report obscene material that was not blocked by the filter.

3. Maintain procedures for using reports of over-blocking or under-blocking to update the blocking software in a reasonable amount of time. There is no specific requirement of reviewing the reports for accuracy. The Attorney General or district attorney may bring a cause of action seeking injunctive relief bar any retailer who is violating the act. They   can also recover legal fees and expenses.

A consumer injured by any violation of the bill can bring a suit for damages. Damages can be no less than the cost of the device plus reasonable legal fees and expenses. This provision is not limited to retailers.

There is an exception for any image constitutes a matter of public concern.

There is a second exception for images are (i) voluntary and (ii) in a public or commercial setting or a place where a person does not have a reasonable expectation of privacy.

A violation is subject to up to five years in prison, a $10,000 fine, or both.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor.

The bill is the same as H.B. 2636/S.B. 1031, which were introduced last year.

“Intimate parts” are defined as the “fully unclothed, partially unclothed, or transparently clothed genitals, pubic area, or anus, or if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing.”

Sexual activity includes touching or fondling by the person in the image or another either directly or through clothing, of the sex organs, anus, or breast of the victim or another person for the purpose of sexual gratification or arousal; Bondage, fetter, sadism, or masochism; or sadomasochism abuse in any sexual context.

There is an exception if the dissemination of the image serves a public purpose.

The second part bars obtaining the personal identity information of another person and use that information to post nude or partially nude photograph, electronic picture or image of another person without the consent.

The bill would bar marketing material that is obscene for minors but NJ’s law is clearly unconstitutional and woefully out of date.

Instead of using the three prongs of the Miller/Ginsberg test, it defines obscene material as:

1. “Obscene material” means any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
2. “Obscene film” means any motion picture film or preview or trailer to a film, not including newsreels portraying actual current events or pictorial news of the day, in which a scene, taken by itself:
   1. Depicts a specified anatomical area or specified sexual activity, or the simulation of a specified sexual activity, or verbalization concerning a specified sexual activity; and
   2. Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.
3. “Specified anatomical area” means:
   1. Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or
   2. Human male genitals in a discernibly turgid state, even if covered.

“Social networking website” is defined as a website which is accessible to third parties and on which users under the age of 18 located in New Jersey may post personal information and through which third parties may communicate with such users.

“Sexually offensive communication” includes any communication that meets New Jersey’s definition of obscene for minors. The definition is clearly unconstitutional. It is defined “any description, narrative account, display or depiction of a specified anatomical area or specified sexual activity, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.” There is an additional definition for scenes in films, taken by themselves, if they meet a two part test:

1. Depicts a specified anatomical area or specified sexual activity, or the simulation of a specified sexual activity, or verbalization concerning a specified sexual activity; and
2. Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.

Anyone who violates this section is liable to the recipient of the email for $5,000 plus legal fees or actual damages, whichever is greater.

“Actual damages” shall consist of “compensatory” and punitive damages and costs of suit, including reasonable attorney’s fees. “Compensatory damages” may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages.

The person who sends the communication shall also be liable to the social networking site for $1,000 plus attorney’s fees.

In addition, a social networking website operator must revoke, in the most expedient time possible without unreasonable delay, the website access of any user or third party upon receipt of information that provides a reasonable basis to conclude that the user or third party violated this legislation.

However, a social networking website operator shall not be deemed to be in violation of subsection a. of this section if the operator maintains a reporting mechanism available to the user that meets the following requirements:

1. the social networking website displays, in a conspicuous location, a readily identifiable icon or link that enables a user or third party to report to the social networking website operator a sexually offensive or abusive communication transmitted through the social networking website;
2. the operator conducts a review, in the most expedient time possible without unreasonable delay, of any report by a user or third party, including investigation and referral to law enforcement if appropriate, and provides users and third parties with the opportunity to determine the status of the operator’s review or investigation of any such report; and
3. the mechanism provides the means to enable a user to block communications from third parties whom users allege have transmitted a sexually offensive or abusive communication.

The bill also bars sending any minor in New Jersey an “abusive communication,” which is defined as any communication which a reasonable person would believe is intended to threaten, intimidate or harass another person. There is no subjective intent element.

New Jersey’s “obscene for minors” law is unconstitutionally overbroad in several respects.

A person who violates this section is liable to the social networking website operator in a civil action for damages of $1,000, plus attorney’s fees, for each violation.

A person who violates this section is also liable to the recipient of the communication in a civil action for damages in the amount of $5,000, plus attorney’s fees, or actual damages, whichever is greater.

Actual damages shall consist of compensatory and punitive damages plus reasonable attorney’s fees. Compensatory damages may include, but are not limited to, damages for pain and suffering, medical expenses, emotional trauma, diminished childhood, diminished enjoyment of life, costs of counseling, and lost wages.

New Jersey’s harmful to minors law is unconstitutional.

An unlawful practice is punishable by a fine of up to $10,000 for a first offense and $20,000 for any subsequent offense.  Additionally, a violation can result in cease and desist orders issued by the Attorney General, punitive damages, and treble damages and costs to the injured.

Other obligations:  A person who manufactures, sells, offers for sale, leases, or distributes a product that makes content accessible on the Internet shall:
1.   make reasonable and ongoing efforts to ensure that the digital content blocking capability functions properly;
2.   establish a reporting mechanism, such as a website or call center, to allow a consumer to report unblocked obscene material or report blocked                          material that is not obscene;
3.   ensure that “revenge pornography” and sites that “facilitate prostitution” and “ sex trafficking” are inaccessible on the product;

Deactivation of filters:  Any digital blocking capability may be deactivated after a consumer:
1.   requests in writing that the capability be disabled;
2.   presents identification to verify that the consumer is 18 years of age or older;
3.   acknowledges receiving a written warning regarding the potential danger of deactivating the digital blocking capability; and
4.   pays a one-time $20 digital access fee.  Alternatively, a business can pay a $20 “opt-out” fee for each device.

The bill requires that a reporting call center be set up for reporting material that should be blocked but was not, and material that was blocked but should not have been.

Failing to act on complaints is also subject to civil suit.

New Jersey’s harmful to minors law is unconstitutional.

An unlawful practice is punishable by a fine of up to $10,000 for a first offense and $20,000 for any subsequent offense.  Additionally, a violation can result in cease and desist orders issued by the Attorney General, punitive damages, and treble damages and costs to the injured.

Other obligations:  A person who manufactures, sells, offers for sale, leases, or distributes a product that makes content accessible on the Internet shall:
1.   make reasonable and ongoing efforts to ensure that the digital content blocking capability functions properly;
2.   establish a reporting mechanism, such as a website or call center, to allow a consumer to report unblocked obscene material or report blocked                          material that is not obscene;
3.   ensure that “revenge pornography” and sites that “facilitate prostitution” and “ sex trafficking” are inaccessible on the product;

Deactivation of filters:  Any digital blocking capability may be deactivated after a consumer:
1.   requests in writing that the capability be disabled;
2.   presents identification to verify that the consumer is 18 years of age or older;
3.   acknowledges receiving a written warning regarding the potential danger of deactivating the digital blocking capability; and
4.   pays a one-time $20 digital access fee.  Alternatively, a business can pay a $20 “opt-out” fee for each device.

The bill requires that a reporting call center be set up for reporting material that should be blocked but was not, and material that was blocked but should not have been.

Failing to act on complaints is also subject to civil suit.

The operator shall provide clear instructions how to do so.  If the operator requires the registered user to request removal, shall complete or comply with such request within 24 hours.

Failure to do so will be considered an deceptive trade practice.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must have their contact list scrubbed to remove any contact points on the do not contact list. The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to a blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor. A court may award actual damages or $1,000, whichever is greater plus legal fees.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list.  The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor.

It then bars anyone from knowingly sending a communication to a contact point that has been on the list for more than thirty calendar days if the primary purpose of the communication is to directly or indirectly advertise or otherwise link to a communication that advertises a product or service that a minor is prohibited by law from purchasing or that contains or has the primary purpose of advertising or promoting material that is harmful to minors.

Anyone wishing to advertise for those products must pay to have their contact list scrubbed to remove anyone on the do not contact list.  The list must be scrubbed monthly.

There is an elaborate system to allow someone to send to blocked address if an adult uses and verifies his or her age.

Anyone who violates the law is subject to a civil action by the parent or guardian of the minor.

A person who consents to a picture being taken or possessed in a “private” or “confidential” relationship retains a reasonable expectation of privacy beyond the end of that relationship.

The person in the image does not have to be identifiable.

“Disclosure” is defined as any dissemination of the image. It does not exclude republishing of the image.

“Intimate parts” are defined as naked genitals, pubic area, buttocks or the nipple of an adult female.

The law would not apply to images of voluntary exposure in public or commercial settings.

There is no exception for newsworthy, historic or artistic images.

This bill is identical to A.B. 571, which was sponsored by Assemblyman Braunstein last year and A.B. 8214, which was sponsored by Assemblyman Braunstein the year before.

There is an enhanced penalty if the dissemination is with the intent to cause serious emotional distress or to obtain profit.

Such a rating may contain, but shall not be limited to, depictions descriptive of, advocating, or glamorizing commission of violent crime, suicide, sodomy, rape, incest, bestiality, sadomasochism, any sexual activity in a violent context or encouraging murder, violent racism, religious violence, morbid violence or illegal use of drugs or alcohol.

Retailers must display such video games in an adults only section of the retail location.

“Rating” is defined as “the standardized designation commonly used to inform parents about video games regarding listening and viewing by their children.”

The bill is the same as AB 3766, which died last year.

“Inaccurate, irrelevant, inadequate, or excessive” is defined as content, which after a “significant” lapse in time from its original publication is no longer “material to current public debate or disclosure,” especially when weighed against the financial, reputational or other harm causes the requesting individual.

There is an exception for information about legal matters relating to violence or is of significant current public interest if the requestor’s role in the matter is significant.

Information must be removed within 30 days of request by the individual.  Failure to do so is subject to a action for monetary damages for each violation or statutory damages of $250, whichever is greater plus attorney’s fees.

The bill also extends the statute of limitations for libel by making the tolling date the removal of information per request rather than first publication.

Website operators must also allow minors to remove or hide content they have posted on the site with certain exceptions.

The bill follows the California law.

The products that may not be marketed to minors are:
(A) Alcoholic beverages;
(B) Machine gun, silencer, switchblade, gravity knife, “pilum ballistic knife.” automatic knife, rifle, shotgun, cane sword, antique firearm, “chuka stick,” electronic dart gun, kung fu stars, stun gun, armor piercing ammo, disguised gun or large capacity magazine
(C) any ammo;
(D) Aerosol container or paint;
(E) tobacco product;
(F) drug or controlled substance;
(G) Air gun or string gun;
(H) Billyclub, blackjack, bludgeon, plastic knuckles, metal knuckles, sand bag, sand club, wrist brace slingshot or slugshot, “shuriken dagger,” dangerous knife, dirk, razor, stiletto or other dangerous or deadly instrument;
(I)  Fireworks;
(J) Tanning service in an ultraviolet radiation device;
(K) Dietary Supplement
(L) Ticket or share in a lottery game or pari-mutual wager;
(M) Tattoo, body piercing or tongue splitting device;
(N) Drug-related paraphenalia;
(0) Material harmful to minors.

“Likeness” is defined as an image, digital replica (whether animated or static), photograph, painting, sketching, model, diagram or other recognizable representation of an individual’s face or body and includes a “characteristic.”

“Characteristic is defined as a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.

“Name” is defined as an actual or assumed name or a nickname.

The bill includes a broad exemption for non-commercial uses based on the exemption language in California’s post-mortem right of publicity law.

There is an exemption for: “News, public affairs or sports broadcasts, including the promotion or advertising of them, an account of public interest or a political campaign; in a play, book, magazine, newspaper, musical composition, visual work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work; a work of political, public interest or newsworthy value including a comment, criticism, parody, satire, or a transformative creation of a work of authorship; or an advertisement or commercial announcement for any of the works described in” the exemption.

The bill was subsequently amended to exclude from the exemption for non-commercial works any work “that includes a commercial use and replicates the professional performance or activities rendered by an individual if the replication is inextricably intertwined with the right of publicity of the individual.”

The bill would also create a statutory cause of action for false light and publication of private facts.  Presently, New York does not have a statutory or common law tort for either.

“other intimate parts” is not defined but under normal rules of interpretation, it must mean something other than the sexual parts of a minor, so the bill would go beyond what is considered illegal as child pornography.

A person who consents to a picture being taken or possessed in a “private” or “confidential” relationship retains a reasonable expectation of privacy beyond the end of that relationship.

The person in the image does not have to be identifiable.

“Disclosure” is defined as any dissemination of the image. It does not exclude republishing of the image.

“Intimate parts” are defined as naked genitals, pubic area, buttocks or the nipple of an adult female.

The law would not apply to images of voluntary exposure in public or commercial settings.

There is no exception for newsworthy, historic or artistic images.

The legislation also allows for a cause of action against the publisher of such an image.  There is an affirmative defense to the cause of action if the image is a matter of public concern.

The cause of action allows the plaintiff to recover actual damages, including pain and suffering, punitive damages and legal fees.

The bill is a companion to A.B. 1641.

“Inaccurate, irrelevant, inadequate, or excessive” is defined as content, which after a “significant” lapse in time from its original publication is no longer “material to current public debate or disclosure,” especially when weighed against the financial, reputational or other harm causes the requesting individual.

There is an exception for information about legal matters relating to violence or is of significant current public interest if the requestor’s role in the matter is significant.

Information must be removed within 30 days of request by the individual.  Failure to do so is subject to a action for monetary damages for each violation or statutory damages of $250, whichever is greater plus attorney’s fees.

The bill also extends the statute of limitations for libel by making the tolling date the removal of information per request rather than first publication.

The present law limits the right to a person’s name, portrait, picture or voice.

08/09/2017 – Thee law was subesequently amended to be identical to A.B. 8155 as amended.

It bars any business or individual that manufactures, produces or sells any device that provides internet access unless it makes inacessible obscene material and to any “intimate image” as defined in the North Dakota harmful to minors law.  However, the law does not define “intimate image.”  It also imposes a duty to make inaccesible “prostitution hubs” (not defined) and websites that facilitate human trafficking (not defined).

Sale of device to a minor that does not have blocking software installed and activated to block harmful to minors material and obscenity will be deemed to have violated North Dakota’s distribution of obscenity and distribution of obscenity to minors laws.

Sale such a device to an adult is class A misdemeanor unless the consumer has asked that the blocking software be deactivated.

The attorney general can obtain an injunction if anyone sells a device without active software to block “prostitution hubs” or websites that facilitate human trafficking.

Filters may be deactivated if:

1.            The consumer requests that it be deactivated
2.            The business verifies in a face to face meeting with the consumer in person or through electronic means that the consumer is 18 years old or older.
3.            The customer acknowledges receiving a written “warning” of the potential danger of deactivating the filter.
4             The consumer pays a $20 tax to the business (which must be remitted to the state).

The state has an elaborate reporting scheme that the Chief Financial Officer of the business must follow.

Other requirements in the legislation for covered businesses:

1.            Send out regular updates to “ensure the quality and performance of the filter.”
2.            Establish a reporting website or call center so consumers can report harmful to minors material that was not blocked by the filter.  Then, it must    assess if the material should have been blocked.  If so, then send an update of the software.
3.            Failing to be responsive is subject to a lawsuit by the consumer or the Attorney General.
4.            Allow reporting of non-obscene material that has been blocked.  If reported, it must be unblocked.

Websites exempt from filtering:  A covered business shall not filter a commercial social networking site if it has a restricted content reporting center.

There is an exception for voluntary exposure in public or in a commercial setting. There’s a second exception for “disclosures in the public interest” but the specific list does not suggest this is a newsworthy exception.

Reasonable expectation of privacy is defined as when a person has consented to the disclosure of an image within the context of a confidential relationship and reasonably believes that it will not go beyond that relationship.

A violation is a felony. A person depicted in an image may also sue for damages to be computed at $1,000 per day or $10,000, whichever is greater.

10/12/2015: H.B. 792 was amended to add additional elements to the crime:

1. The distribution of an image must also be done with an intent to coerce, harass, intimidate, demean, humiliate or cause financial loss to the person in the image, or to cause others to do so.
2. The person in the image must be identifiable from the image itself or information offered in connection with the image.

The bill was also amended to require that the image be distributed without affirmative consent of the person depicted.

The business or individual must also:
1.  Make reasonable and ongoing efforts to ensure that the blocking software works properly; including setting up a call center or website to report blocking non-obscene material and failing to block obscene material.
2.  Block “private sexual images published without consent of all parties.”  These images are not illegal Oklahoma law and are protected by the First Amendment.
3.  Block access to prostitution and human trafficking websites, but neither term is defined.

A business or individual that manufactures, distributes or sells a product without the digital content blocking capability or sells the product to a minor without activated filters is subject to up to one year imprisonment in county jail, a fine of not less than $1,000, or both.

Deactivation of filters:  Any digital blocking capability may be deactivated after a consumer:
1.   requests in writing that the capability be disabled;
2.   presents identification to verify that the consumer is 18 years of age or older;
3.   acknowledges receiving a written warning regarding the potential danger of deactivating the digital blocking capability; and
4.   pays a one-time $20 digital access fee to the seller.

The blocking software shall not filter a commercial social networking site if it has a call center or reporting website and is “proactive” in removing obscene material once it has been reported.

There is a second crime that bars a “third-party recipient” from distributing such an image if the person has actual knowledge the dissemination of the image violates the first crime.  There is an exception to the legislation for the dissemination of such an image if “serves a lawful purpose” or the image “constitutes a matter of public concern.”

There is a second crime that bars a “third-party recipient” from distributing such an image if the person has actual knowledge the dissemination of the image violates the first crime.  There is an exception to the legislation for the dissemination of such an image if “serves a lawful purpose” or the image “constitutes a matter of public concern.”

It is a companion to H.B. 5304

The “digital blocking capability” must also make “inaccessible” child pornography (not defined), revenge pornography (SC doesn’t have an RP law), hubs that facilitate prostitution (undefined) and websites that facilitate trafficking in persons (defined by reference to a separate statute).

The “digital blocking capability” can only be deactivated by an adult who goes through a four step process:
a. The adult makes a written request.
b. Presents identification proving he or she is 18 or older.
c.  Acknowledges receiving a written warning of the potential dangers of deactivating the “digital blocking capability.”
d.  Pays a $20 “access” fee.

The business must set up a website or call center to allow reporting of unblocked obscene material or blocked material that is not obscene.
a.  Any reports of over blocking or under blocking must be reviewed within five days
1.  A consumer may “seek judicial relief” to unblock content that they think is not obscene
2. The consumer or the Attorney General can sue for failing to respond in a timely fashion about a complaint that material was not blocked that                                 they think is obscene.

The bill makes it illegal to manufacture, distribute, or sell a product that makes content accessible on the Internet without the “digital content blocking capability,” selling the product to a minor without activated filters, or providing the means to disable the “digital content blocking capability”.
a.  Any business that violates the section will be deemed to have violated three laws separate laws
1. SECTION 16-15-250: Bars the anonymous communication to another person without their consent of “obscene, profane, indecent                                                   vulgar, suggestive, or immoral message.”  This is a misdemeanor subject to three years in prison.
2.  SECTION 16-15-345. Disseminating obscene material to person under age eighteen.  This is a felony subject to up to 10 years in prison.

3. SECTION 16-15-385. Disseminating harmful material to minors and exhibiting harmful performance to minor.  This is also a felony subject                                              to up to 10 years in prison.

The Attorney General may seek injunctive relief against any business that “violates the provisions of this article.”

“Malicious” is defined as action taken with actual malice aforethought.

Social Media” is defined as “a category of Internet sites based on user participation and user-generated content centered on user interaction.”

“Malicious” is defined as action taken with actual malice aforethought.

Social Media” is defined as “a category of Internet sites based on user participation and user-generated content centered on user interaction.”

A violation is subject to up to one year in prison, a fine of $1,000, or both.

If the original charge against the person requesting removal is discharged or dismissed as a result of the person pleading to a lesser offense, the publisher shall change the published information to reflect the lesser offense instead of the original charge, but is not required to remove the arrest or booking information.

Failure to do so is subject to a civil cause of action.

(1) the person disseminating the image knows or should know he is not “licensed or privileged” to do so; and

(2) depicted person suffers emotional distress or embarrassment.

Sexually explicit nudity is defined as “uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or covered human male genitals in a discernibly turgid state.”

“Licensed or privileged” is not defined.

The crime is punishable by up to one year in prison or a fine of up to $1,000.

(1) the person disseminating the image knows or should know he is not “licensed or privileged” to do so; and

(2) depicted person suffers emotional distress or embarrassment.

Sexually explicit nudity is defined as “uncovered, or less than opaquely covered human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast; or covered human male genitals in a discernibly turgid state.”

“Licensed or privileged” is not defined.

The crime is punishable by up to one year in prison or a fine of up to $1,000.

Read the legal memo we filed on H.B. 1243 »

Sexual exploitation of children is not defined.

A violation is subject to up to 5 years in prison, a fine, or both.

The bill is a companion to S. 2162.

A violation is subject to up to 5 years in prison, a fine, or both.

The bill is a companion to H.R. 4472.

(a) at the time the material is produced, distributed, or otherwise provided, the person is a minor; and (b) the material is the proximate cause for the person being harmed physically or psychologically, or by emotional or medical illnesses.

There is an exception if the person who produces or distributes the harmful to minors material makes a good faith effort to prevent minors from accessing the harmful to minors content and posts conspicuous warning signs that appear before the content and something similar to one of:

(A) “Using pornography may impair sexual function with partners.”

(B) “Using pornography can cause escalating sexual preferences to more extreme content.”;

(C) “Using pornography has been shown to reduce sexual and relationship satisfaction.”;

(D) “Using pornography may become compulsive”; or

(E) “Some jurisdictions recognize pornography as a public health hazard.”

The plaintiff can recover actual damages, attorney fees and costs. He or she can recover punitive damages if they can prove that the person targeted minors.

Identifying information is defined to include a person’s address and phone number. It does not include information that is lawfully available from publicly available information, or from federal, state, or local government records lawfully made available to the general publication.

A violation is a felony. If the disclosure results in the person being harassed, the crime is a misdemeanor.

However, this does not make sense in the context it is used. A violation is a misdemeanor offense.

Update 05/09/17: S.B. 240 was amended so that the dissemination must be done with the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce the person in the image, and the image was captured under circumstances in that the person had a reasonable expectation that the image would not be publicly displayed.

The filters must also block child pornography, “revenge porn” (West Virginia does not have a statute) and websites known to facilitate prostitution and human trafficking.

The filters must be regularly updated to ensure effectiveness in blocking obscenity.

The retailer must maintain a website or telephone line to allow consumers to report over blocking or under blocking of obscene material.   There must also be procedures to evaluate reports of over or under blocking to determine if they are accurate and should be corrected.

The filter can only be deactivated by an adult who goes through a four step process:
a. The adult makes a written request.
b. Presents identification proving he or she is 18 or older.
c. Acknowledges receiving a written warning of the potential dangers of deactivating the filtering software.
d.  Pays a $20 “access” fee.

A retailer who violates this section is subject to six months of incarceration and a fine of up to $1000, or both.  If the customer is a minor, it is up to one year in prison, a $1,000 fine, or both.

The attorney general can sue to enforce other parts of the legislation.

The filters must also block child pornography, however the Wyoming statute can be read to apply to images that appear to be minors. The filter can only be deactivated by an adult who goes through a four step process:

a. The adult makes a written request.

b. Presents identification proving he or she is 18 or older.

c. Acknowledges receiving a written warning of the potential dangers of deactivating the filtering software.

d. Pays a $20 “access” fee.

The written warning is to be drafted by the attorney general.

It deems anyone who manufactures, sells or distributes an internet enabled device in this state that does not contain blocking software to violate the existing law for distributing obscenity, which is subject to up to one year in prison.

There is no provision in the bill for creating a process to unblock non-obscene material or to request blocking of obscene material that the blocking software failed to filter.