Bills We Tracked 2019

H.B. 2444 is a mandatory internet filtering bill (part of the HTPA campaign). No business or individual shall manufacture, produce, or sell any device that provides internet access unless it contains an active software that makes obscene material inaccessible and prohibits access to “revenge porn” and to “websites known to facilitate prostitution and trafficking in persons for sexual servitude.” There is no basis for why the bill is drafted to refer to blocking the types of content differently.

Obscene material is defined as the three prongs of the Miller test (not by reference to Arizona’s existing law).

“Revenge porn” is defined as the distribution of any nude image of an identifiable person without the consent of the person depicted. Nudity includes less than completely and opaquely covered buttocks, pubic region, the female breast anywhere below the top of the areola, or male genitals in a discernibly turgid state, even if clothed. The definition does not reference the existing state law.

The filtering software is not required to block any website that primarily plays full-length movies rated R and below, social media websites, sites that allow reporting of content as mandated in the bill, and sites that are “proactive” in removing obscene content on the website.

A violation is a class 1 misdemeanor and can be subject to injunctive relief, in addition to any criminal penalty or fine for each video or audio depiction or website that was not blocked.

In addition, the distributor must also set up a website or call center to receive reports of over-blocking or under-blocking of obscene material. If the distributor fails to block material reported as obscene within five days, the attorney general can sue for injunctive relief. If the distributor fails to unblock non-obscene material within five days, a person may seek judicial relief. The prevailing party in either instance can seek attorneys’ fees. No remedy is provided for images incorrectly blocked as revenge porn or as facilitating prostitution.

The distributor must also make reasonable and ongoing efforts to ensure that the filtering software is operating correctly.

Filters may be deactivated if:

1. The consumer specifically requests in writing that it be deactivated;
2. The consumer presents proof of age that he or she is 18 years old or older;
3. The consumer acknowledges receiving a written “warning” of the potential danger of deactivating the filter; and
4. The consumer pays a $20 tax to the business (which must be remitted to the state) and any additional fee imposed by the business.

H.B. 1028 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Arkansas and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.B. 1032 is a mandatory internet filtering bill (part of the HTPA campaign). No business or individual shall manufacture, produce, or sell any device that provides internet access unless it contains an active software that makes obscene material inaccessible and prohibits access to “revenge porn” and to “websites known to facilitate prostitution and trafficking in persons for sexual servitude.” There is no basis for why the bill is drafted to refer to blocking the types of content differently.

Obscene material is defined by reference to a nonexistent section of Arkansas law.

“Revenge porn” is defined as the distribution of any nude image of an identifiable person without the consent of the person depicted. Nudity is defined to include buttocks, pubic region, or the female breast anywhere below the top of the areola.

A violation is subject to less than one year in prison and a fine of up to $500 for each video or audio depiction or website that was not blocked.

In addition, the distributor must also set up a website or call center to receive reports of over-blocking or under-blocking of obscene material. If the distributor fails to block material reported as obscene within five days, the attorney general can sue for injunctive relief. If the distributor fails to unblock non-obscene material within five days, a person may seek judicial relief. The prevailing party in either instance can seek attorneys’ fees. No remedy is provided for images incorrectly blocked as revenge porn or as facilitating prostitution.

The distributor must also make reasonable and ongoing efforts to ensure that the filtering software is operating correctly.

Filters may be deactivated if:

1. The consumer specifically requests in writing that it be deactivated;
2. The consumer presents proof of age that he or she is 18 years old or older;
3. The consumer acknowledges receiving a written “warning” of the potential danger of deactivating the filter; and
4. The consumer pays a $20 tax to the business (which must be remitted to the state).

S.B. 230 creates a statutory tort for publication of private facts and false light.

The plaintiff does not have to allege harm as an element of the cause of action.

The burden of proof for the plaintiff is a preponderance of the evidence. If an allegation in the plaintiff’s complaint is not controverted or disputed in the defendant’s answer, the allegation is deemed proven and it shall not be necessary for the plaintiff to prove the allegation at trial.

A defendant to a cause of action under this section is strictly liable for any statement made that is proven to have improperly invaded the plaintiff’s privacy.

Under A.B. 288, if anyone with an account with a “social media company” decides to close it, the “social media company” must allow the account holder the option of having their “personally identifiable information” permanently removed from the company’s database and records and barred from being sold. The social media company shall honor that request within a reasonable time frame.

“Social media company” is defined as a company who provides electronic services or accounts, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or internet website profiles or locations.

“Personally identifiable information” is not defined in the bill.

Any consumer who suffers damages as a result of a failure to remove the records or by selling them may bring an action in a court of appropriate jurisdiction against that company for injunctive relief, actual damages, loss of wages, and, when applicable, pain and suffering. The consumer may also recover legal fees and court costs.

In addition to these damages, if it was a willful violation, the consumer may also recover punitive damages of no less than $100 or more than $10,000 for each violation as the court deems proper and any other relief the court deems proper.

A willful violation may also be subject to damages as part of a class-action suit.

Amendment on 03/21/2019:

The bill was amended to limit the bill to social networking services, defined as:

1. Offers users an account hosted on the platform that requires a unique identifier and password;

2. Allows users, through their account, to establish interpersonal connections with other user accounts on the platform;

3. Allows users, through their account, to transmit electronic content between and among some or all of the user accounts to which they are interconnected.

The amended bill excludes “media organizations,” defined a person or entity engaged in disseminating information to the general public.

The definition excludes media companies, retailers and 501(c)(3) organizations.

A.B. 602 bars the creation or dissemination of a “deceptive recording.”

“Deceptive recording” is defined as any audio or video recording that has been created or altered in such a manner that it falsely appears, to a reasonable observer, to be an authentic recording of a person’s actual speech or actions. A deceptive recording does not include any recording that is satire or parody, or that otherwise, because of content, context, or a clear disclosure, would not cause a reasonable person to believe that it is real.

A.B. 730 bars the distribution within 60 days of an election of a “materially deceptive audio or visual media” of a candidate for office if done with actual malice.

“Materially deceptive audio or visual media” is defined as an image or an audio or visual recording that has been intentionally manipulated to alter the appearance, speech, or conduct of a candidate so as to create a significant likelihood of causing a reasonable person to understand or experience the expressive content of the image or recording in a manner that is “fundamentally” different from the understanding or experience the person would have if the person were hearing or seeing the unaltered original version of the image or recording.

A.B. 1316 bars anyone who operates a “social media internet website” located in California from removing or manipulating content from that site on the basis of the political affiliation or political viewpoint of that content.

“Social media internet website” is defined as “an electronic service or account held open to the general public to post, in either a public or semi-public page dedicated to a particular user, electronic content or communication, including, but not limited to, videos, still photographs, or messages, intended to facilitate the sharing of information, ideas, personal messages, and other content.”

Amendment on 04/29/2019:

The bill was amended to allow the removal of content pursuant to the website’s terms of service.

H.B. 1334 bars the electronic distribution of an image of a suicide by a minor.

Amendment 05/03/2019:

The bill was amended to limit the scope to distribution intended to coerce, harass, or intimidate, and emotional harm occurs.

S.B. 843 would make it a felony to disseminate a non-consensual nude image by means of an interactive computer service to more than one person. Presently, it is a misdemeanor to disseminate such an image to a single person.

S.B. 169 creates a civil cause of action for the distribution of a nude image without consent based on the ULC model act.

H.B. 855 amends the definition of harmful to minors to remove the serious value prong and the taken as a whole requirement. In the definition, it limits the type of content that can be judged as harmful to minors to sexual contact between people who are unmarried.

However, the section of law that makes it illegal to disseminate material harmful to minors was amended so that it would apply to explicit and detailed verbal descriptions or narrative accounts of sexual excitement or sexual conduct but removes the requirement that the material be harmful to minors under the Miller/Ginsberg test.

The bill would also remove the limitation that dissemination of material harmful to minors be limited to dissemination for monetary consideration.

It also amends the definition of child pornography in section 847.001 to include text that depicts a minor engaging in sexual conduct. The present law is limited to images that depict a minor engaging in sexual conduct.

S.B. 1454 amends the definition of harmful to minors to remove the serious value prong and the taken as a whole requirement. In the definition, it limits the type of content that can be judged as harmful to minors to sexual contact between people who are unmarried.

However, the section of law that makes it illegal to disseminate material harmful to minors was amended so that it would apply to explicit and detailed verbal descriptions or narrative accounts of sexual excitement or sexual conduct but removes the requirement that the material be harmful to minors under the Miller/Ginsberg test.

The bill would also remove the limitation that dissemination of material harmful to minors be limited to dissemination for monetary consideration.

It also amends the definition of child pornography in section 847.001 to include text that depicts a minor engaging in sexual conduct. The present law is limited to images that depict a minor engaging in sexual conduct.

S.B. 1722 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Florida and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.B. 567 is a mandatory internet filtering bill (part of the HTPA campaign).

It is unclear what part of H.B. 567 is actionable. It has similar but separate and inconsistent sections. Section 1(a) makes it a violation of §712 to manufacture or distribute a product that makes any content accessible on the internet without “digital blocking capability” (filtering software) that renders material covered under §1(b) inaccessible by default, and to distribute or manufacture it [sic] to a minor unless the filtering software is “actively and properly operating.”

Section 1(b) has a separate requirement that anyone who manufactures or distributes a product that makes content on the internet accessible shall make “reasonable and ongoing” efforts to ensure that “revenge pornography” is inaccessible, prohibit the product from accessing any website that “facilitates prostitution” and render websites known to facilitate “human trafficking” inaccessible.

Finally, §2 makes it a misdemeanor to manufacture or distribute a device that makes content available on the internet unless it contains filtering software that “makes any attempt to render” “revenge pornography,” websites that “facilitate prostitution or human trafficking” and child pornography inaccessible. It separately bars the manufacture or distribution to a minor unless it has filters that are active and attempting to block “obscene” material described in §1(b) inaccessible, but the material in this subsection does not meet the definition of obscene.

“Revenge pornography” is defined as the nonconsensual disclosure of an image of a person who is nude or engaging in sexual conduct. The definition does not define “nude” or state whose consent is necessary. There is an existing Hawaii “revenge pornography” law that bars publication of certain nude images under specific circumstances but it is not referenced by this bill. The bill also does not define “facilitate prostitution” or “facilitate human trafficking.”

The distributor shall deactivate the filtering software only if the consumer requests that it be disabled, presents proof that he or she is an adult, acknowledges receiving a written warning of the danger of turning off the filter, and pays a $20 tax plus any additional charge imposed by the distributor.

In addition to these requirements, the manufacturer and each distributor must make reasonable and ongoing efforts to ensure that the filter is working properly. They must also create a website, call center, or another reporting mechanism to allow a person to report blocking of non-obscene material or the failure to block obscene material. Once a report is made, the distributor has five days to assess the content and block material that is obscene and unblock speech that is not obscene. If the distributor declines to block material reported as obscene, the attorney general or any person may bring a civil suit to block unblocked content. If the attorney general or the person prevails, they may seek damages of $500 per unblocked depiction. If the distributor decides not to unblock material reported as not appropriate to block, any person may sue to get the speech unblocked but the attorney general is not authorized to bring such a suit. In either case, the prevailing party is entitled to attorneys’ fees.

H.B. 647 is a mandatory internet filtering bill (part of the HTPA campaign).

It is unclear what part of H.B. 647 is actionable. It has similar but separate and inconsistent sections. Section 1(a) makes it a violation of §712 to manufacture or distribute a product that makes any content accessible on the internet without “digital blocking capability” (filtering software) that renders material covered under §1(b) inaccessible by default, and to distribute or manufacture it [sic] to a minor unless the filtering software is “actively and properly operating.”

Section 1(b) has a separate requirement that anyone who manufactures or distributes a product that makes content on the internet accessible shall make “reasonable and ongoing” efforts to ensure that “revenge pornography” is inaccessible, prohibit the product from accessing any website that “facilitates prostitution” and render websites known to facilitate “human trafficking” inaccessible.

Finally, §2 makes it a misdemeanor to manufacture or distribute a device that makes content available on the internet unless it contains filtering software that “makes any attempt to render” “revenge pornography,” websites that “facilitate prostitution or human trafficking” and child pornography inaccessible. It separately bars the manufacture or distribution to a minor unless it has filters that are active and attempting to block “obscene” material described in §1(b) inaccessible, but the material in this subsection does not meet the definition of obscene.

“Revenge pornography” is defined as the nonconsensual disclosure of an image of a person who is nude or engaging in sexual conduct. The definition does not define “nude” or state whose consent is necessary. There is an existing Hawaii “revenge pornography” law that bars publication of certain nude images under specific circumstances but it is not referenced by this bill. The bill also does not define “facilitate prostitution” or “facilitate human trafficking.”

The distributor shall deactivate the filtering software only if the consumer requests that it be disabled, presents proof that he or she is an adult, acknowledges receiving a written warning of the danger of turning off the filter, and pays a $20 tax plus any additional charge imposed by the distributor.

In addition to these requirements, the manufacturer and each distributor must make reasonable and ongoing efforts to ensure that the filter is working properly. They must also create a website, call center, or another reporting mechanism to allow a person to report blocking of non-obscene material or the failure to block obscene material. Once a report is made, the distributor has five days to assess the content and block material that is obscene and unblock speech that is not obscene. If the distributor declines to block material reported as obscene, the attorney general or any person may bring a civil suit to block unblocked content. If the attorney general or the person prevails, they may seek damages of $500 per unblocked depiction. If the distributor decides not to unblock material reported as not appropriate to block, any person may sue to get the speech unblocked but the attorney general is not authorized to bring such a suit. In either case, the prevailing party is entitled to attorneys’ fees.

S.B. 254 is a mandatory internet filtering bill (part of the HTPA campaign).

It is unclear what part of S.B. 254 is actionable. It has similar but separate and inconsistent sections. Section 1(a) makes it a violation of §712 to manufacture or distribute a product that makes any content accessible on the internet without “digital blocking capability” (filtering software) that renders material covered under §1(b) inaccessible by default, and to distribute or manufacture it [sic] to a minor unless the filtering software is “actively and properly operating.”

Section 1(b) has a separate requirement that anyone who manufactures or distributes a product that makes content on the internet accessible shall make “reasonable and ongoing” efforts to ensure that “revenge pornography” is inaccessible, prohibit the product from accessing any website that “facilitates prostitution” and render websites known to facilitate “human trafficking” inaccessible.

Finally, §2 makes it a misdemeanor to manufacture or distribute a device that makes content available on the internet unless it contains filtering software that “makes any attempt to render” “revenge pornography,” websites that “facilitate prostitution or human trafficking” and child pornography inaccessible. It separately bars the manufacture or distribution to a minor unless it has filters that are active and attempting to block “obscene” material described in §1(b) inaccessible, but the material in this subsection does not meet the definition of obscene.

“Revenge pornography” is defined as the nonconsensual disclosure of an image of a person who is nude or engaging in sexual conduct. The definition does not define “nude” or state whose consent is necessary. There is an existing Hawaii “revenge pornography” law that bars publication of certain nude images under specific circumstances but it is not referenced by this bill. The bill also does not define “facilitate prostitution” or “facilitate human trafficking.”

The distributor shall deactivate the filtering software only if the consumer requests that it be disabled, presents proof that he or she is an adult, acknowledges receiving a written warning of the danger of turning off the filter, and pays a $20 tax plus any additional charge imposed by the distributor.

In addition to these requirements, the manufacturer and each distributor must make reasonable and ongoing efforts to ensure that the filter is working properly. They must also create a website, call center, or another reporting mechanism to allow a person to report blocking of non-obscene material or the failure to block obscene material. Once a report is made, the distributor has five days to assess the content and block material that is obscene and unblock speech that is not obscene. If the distributor declines to block material reported as obscene, the attorney general or any person may bring a civil suit to block unblocked content. If the attorney general or the person prevails, they may seek damages of $500 per unblocked depiction. If the distributor decides not to unblock material reported as not appropriate to block, any person may sue to get the speech unblocked but the attorney general is not authorized to bring such a suit. In either case, the prevailing party is entitled to attorneys’ fees.

H. 139 is a libel tourism bill.

It bars the enforcement of foreign judgments for a number of reasons, including: the court sitting in this state before which the matter is brought determines that the defamation law applied in the adjudication by the foreign court failed to provide at least as much protection for freedom of speech and press in that case as would be provided by the constitutions of Idaho and the United States.

H.B. 2408 would bar the publication of a nude image of an identifiable adult either (a) if a reasonable person would know or understand that it was taken without the person’s knowledge and it was obtained under circumstances that the publisher knows or should know that the person in the image has not consented to the publication; or (b) the publisher owns or operates a website that allows the publishing of such images and does not remove them upon discovery of such images being posted.

The bill would allow a person depicted in such an image to file a petition for removal upon discovery that such an image had been posted. It also allows for an emergency takedown order if the person in the image can present prima facia that the image is of him or her, in which case the court can enter a takedown order without holding a hearing.

There is no exception for newsworthy images.

H.B. 2616 is a mandatory internet filtering bill (part of the HTPA campaign).

It bars the distribution or sale of any product that makes content accessible on the internet without active and properly operating filtering software that blocks minors from accessing obscene material and blocks access by all users of “revenge pornography” and any “website that facilitates prostitution or human trafficking.” These terms are not defined in the bill.

The seller or distributor must make reasonable and ongoing efforts to ensure the filter is working properly.

If the filtering software blocks material that is not obscene and the purchase or recipient reports it to the seller or distributor, the content must be unblocked within five days. The purchaser or distributor may seek judicial relief to unblock content that is not obscene. There is no way to unblock any other category of content. If the filters fail to block material that a person believes is obscene, it can be reported to the seller or manufacturer. A failure to block the content is subject to a civil suit, and a court can award damages.

The filtering software can be deactivated by the person who sole or distributed it if the purchase or recipient:

1. Makes a request that it be disabled;
2. Presents identification proving he or she is 18 or older;
3. Is provided by the manufacturer or distributor with a written warning of the potential dangers of deactivating the filtering software and the consumer acknowledges receiving it; and,
4. Pays a $20 tax and any additional fee charged by the seller or distributor.

H.B. 1333 makes it illegal for any person to disclose or display a nude or sexual image of another person if they knew or reasonably should have known that the depicted person did not consent.

A violation is a class A misdemeanor.

H.B. 1481 allows anyone convicted of dissemination to a minor of material harmful to minors to be sued by the minor who was given the material. The minor can recover declaratory or equitable relief, including injunctive relief, actual and consequential damages, or punitive damages when determined to be appropriate, plus legal fees.

The bill would also remove the exemption for libraries and schools from Indiana’s existing harmful to minors law.

H.B. 1532 makes it illegal for any person to disclose or display a nude or sexual image of another person if they knew or reasonably should have known that the depicted person did not consent.

A violation is a class A misdemeanor.

S.B. 192 provides a civil cause of action against any person who disclosed or displayed a nude or sexual image of another person if they knew or reasonably should have known that the depicted person did not consent.

The plaintiff may recover actual or liquidated damages and legal fees and costs.

Amendment 04/09/2019:

The bill was amended to limit the crime to disclosure if done with the intent to harass, intimidate, threaten, coerce, embarrass; or gain profit at the expense of; or cause physical or financial injury or serious emotional harm. Harm is defined as physical or financial injury or emotional distress.

The defendant must also know or act with reckless disregard that the person is identifiable.

S.B. 243 makes it illegal for any person to disclose or display a nude or sexual image of another person if they knew or reasonably should have known that the depicted person did not consent.

A violation is a class A misdemeanor.

The bill is the same as H.B. 1333.

Amendment on 04/09/2019:

The bill was amended to limit it to distribution by a person who receives an image directly from a person in the image or a person who captures the image.

H.F. 313 is a mandatory internet filtering bill (part of the HTPA campaign).

It makes it an aggravated misdemeanor to manufacture, distribute, or sell any product that makes content accessible on the internet unless the device has an “active and operating” filter that blocks all sites that contain any content that is obscene for minors or nude images published without consent, or promotes or facilitates prostitution or human trafficking.

To have the filtering software deactivated, the consumer who purchased the product must:

1. Request in writing that it be deactivated;
2. Present identification proving that he or she is an adult;
3. Receive a written warning of the dangers of using the internet without filters;
4. Acknowledge receiving the written warning; and,
5. Pay a $20 tax to be remitted to the state, in addition to any additional fees imposed by the distributor.

In addition to these requirements, the manufacturer, distributor, or seller must make reasonable efforts to ensure that the filter is working properly and is routinely updated. They must create a website or call center to allow reporting of over- or under-blocking of prohibited content. Reports must be investigated and remedied within 30 days. If the filters were found to have failed to block prohibited material, an update must be sent to the software. If material not prohibited is blocked, the reporting party must be given access.

The attorney general or a consumer can sue the manufacturer or seller of a product that is not equipped with working filtering software or that fails to block prohibited material. If successful, the plaintiff can be awarded $500 for each reported failure to block, plus legal fees. A court can also provide injunctive relief. No cause of action is provided for blocking material that is not prohibited.

H.F. 313 exempts from blocking “social media” websites that have an existing system to manage consumer complaints; sites that are primarily search engines; and sites that stream movies rated “restricted or below” by the MPAA’s rating board.

H.F. 317 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Iowa and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.B. 2319 is a mandatory internet filtering bill (part of the HTPA campaign).

It bars the distribution or sale of any product that makes content accessible on the internet without active and properly operating filtering software that blocks access to obscene material, revenge pornography, and any website that facilitates prostitution or human trafficking.

The seller or distributor must make reasonable and ongoing efforts to ensure that the filter is working properly.

If the filtering software blocks material that is not obscene and the purchaser or recipient reports it to the seller or distributor, the content must be unblocked within five days. The purchaser or distributor may seek judicial relief to unblock content that is not obscene. The purchaser may also report content believed to be obscene but is not blocked. The seller then has five days to determine if the material is obscene and block it.

The filtering software can be deactivated by the person who sold or distributed it if the purchaser or recipient:

1. Makes a request that it be disabled;
2. Presents identification proving he or she is 18 or older;
3. Receives a written warning of the potential dangers of deactivating the filtering software from the manufacturer or distributor, and acknowledges receiving this written warning; and
4. Pays a $20 tax and any additional fee charged by the seller or distributor.

H.B. 2322 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Kansas and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.B. 691 expands the existing definition of child pornography to bar the knowing possession and intentional retention of a computer-generated image that is “indistinguishable from an actual” minor under the age of 16 years: engaged as a subject of sadomasochistic abuse; engaged in sexual conduct; or in a state of sexual excitement.

“Sadomasochistic abuse” is defined as flagellation or torture committed by or inflicted on an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume; or binding, fettering, or otherwise physically restraining an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume.

A violation is subject to up to five years in prison, a fine not to exceed $2,500, or both.

H.B. 1027 expands the existing definition of child pornography to bar the knowing possession and intentional retention of a computer-generated image that is “indistinguishable from an actual” minor under the age of 16 years: engaged as a subject of sadomasochistic abuse; engaged in sexual conduct; or in a state of sexual excitement.

“Sadomasochistic abuse” is defined as flagellation or torture committed by or inflicted on an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume; or binding, fettering, or otherwise physically restraining an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume.

A violation is subject to up to five years in prison, a fine not to exceed $2,500, or both.

The bill is the same as S.B. 736.

Amendment 03/21/2019:

The bill was amended to define “indistinguishable from an actual child” as an image an ordinary person would conclude was an actual minor. This includes an actual minor or a computer-generated image that has been “created, adapted, or modified” to appear as an identifiable minor.

S.B. 736 expands the existing definition of child pornography to bar the knowing possession and intentional retention of a computer-generated image that is “indistinguishable from an actual” minor under the age of 16 years: engaged as a subject of a sadomasochistic abuse; engaged in sexual conduct; or in a state of sexual excitement.

“Sadomasochistic abuse” is defined as flagellation or torture committed by or inflicted on an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume; or binding, fettering, or otherwise physically restraining an individual who is nude, wearing only undergarments, or wearing a revealing or bizarre costume.

A violation is subject to up to five years in prison, a fine not to exceed $2,500, or both.

Amendment 03/21/2019:

The bill was amended to define “indistinguishable from an actual child” as an image an ordinary person would conclude was an actual minor. This includes an actual minor or a computer-generated image that has been “created, adapted, or modified” to appear as an identifiable minor.

H.B. 76 would criminalize the knowing distribution of an image depicting another identifiable person who is nude, partially nude, or engaged in sexual conduct; when the distribution would cause a reasonable person to suffer harm; and does so with the intent to harm, harass, intimidate, threaten, or coerce, or with reckless disregard for the likelihood that the person depicted or the person receiving the image will suffer harm; and, at the time of the distribution, knew or should have known that the depicted person did not consent to the distribution.

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

There is a second exception for images that 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.

H.B. 571 bars the publication with the intent to cause substantial emotional distress or humiliation, and without the consent of the other person, any image depicting the person nude or engaged in a sexual act.

There is no expectation of privacy element or exception for images that are newsworthy or concern a matter of public interest.

A violation is subject to a fine of no less than $1,000 or at least 1 year in prison, or both.

H.B. 3410 bars the willful disclosure of an image depicting another identifiable person who is nude or engaged in a sexual act, and, at the time of the disclosure, knew or should have known that the person so depicted did not consent to the disclosure.

There is an exception for publication for any bona fide and lawful public purpose.

A violation is subject to up to 2 and a half years in jail, 5 years in prison, a fine of no more than $10,000, or by both the fine and a prison term.

H.B. 4801 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Michigan and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.F. 974 would require the operator of a “social media platform” to post a warning that would appear every time an account holder accesses an account that reads: “SOCIAL MEDIA USE IS ADDICTIVE. EXCESSIVE USE OF MOBILE DEVICES AND SOCIAL MEDIA PLATFORMS MAY LEAD TO MENTAL HEALTH DISORDERS, REDUCED PRODUCTIVITY, LACK OF SLEEP, AND SOCIAL ALIENATION.”

“Social media platform” is defined as an electronic medium, telephone network, or data network that allows users to create, share, and view user-created content.

Retailers of mobile devices would also have to provide such a warning at the time of purchase.

H.F. 2895 requires that anyone who makes accessible on the internet “pornographic material” on a “commercial basis” to block access to their site to anyone under the age of 18. The site must use verification software or another identity verification consistent with industry best practices to verify the person seeking to access such content is 18.

“Pornographic material” is defined as a “video, still image, or series of images, with or without sound, that is reasonably assumed from its nature to be produced solely or principally for sexual arousal.”

“Commercial basis” is defined as content that is for sale or otherwise generates income, including through advertising.

S.F. 1159 would require the operator of a “social media platform” to post a warning that would appear every time an account holder accesses an account that reads: “SOCIAL MEDIA US IS ADDICTIVE. EXCESSIVE USE OF MOBILE DEVICES AND SOCIAL MEDIA PLATFORMS MAY LEAD TO MENTAL HEALTH DISORDERS, REDUCED PRODUCTIVITY, LACK OF SLEEP, AND SOCIAL ALIENATION.”

“Social media platform” is defined as an electronic medium, telephone network, or data network that allows users to create, share, and view user-created content.

Retailers of mobile devices would also have to provide such a warning at the time of purchase.

H.B. 885 is a mandatory internet filtering bill (part of the HTPA campaign).

It requires all ISPs to block access to sexual content and redirect any customer attempting to access the content to a warning page explaining that the content was blocked. To access the content, the customer must be 18 years of age or older and then set up a password that must be entered each time he or she wants to access sexual content.

The business or individual must also 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. The ISP must report decisions on reports of under-blocking to the reporting party within 10 days.

The attorney general must also set up a reporting center for sites that users believe to be incorrectly deemed to be obscene or non-obscene.

An ISP that intentionally fails to block a website that is obscene and was reported to it is guilty of a misdemeanor violation.

S.B. 382 is a mandatory internet filtering bill (part of the HTPA campaign).

It requires all ISPs to block access to sexual content and redirect any customer attempting to access the content to a warning page explaining that the content was blocked. To access the content, the customer must be 18 years of age or older and then set up a password that must be entered each time he or she wants to access sexual content.

The business or individual must also 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. The ISP must report decisions on reports of under-blocking to the reporting party within 10 days.

The attorney general must also set up a reporting center for sites that users believe to be incorrectly deemed to be obscene or non-obscene.

An ISP that intentionally fails to block a website that is obscene and was reported to it is guilty of a misdemeanor violation.

H.B. 1203 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Mississippi and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

S.B. 2472 is a mandatory internet filtering bill (part of the HTPA campaign).

It bars any business or person that manufactures, distributes, or sells any product that makes content accessible on the internet from doing business in Mississippi unless the product contains an “active and operating digital blocking capability” that blocks access to obscene material. The filters must also block access to revenge pornography and to prostitution and human trafficking websites, but none of these terms are defined.

The business or individual must also 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.

Any 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 no less than $1,000, or both.

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.

H.B. 192 bars the publication or disclosure of any image without the consent of the person depicted if it shows the visible genitals, anus, female breast, or “other intimate parts” of the depicted person. “Other intimate parts” is not defined.

There is an exception for disclosures made in the public interest, which is defined as “including but not limited to the reporting of unlawful conduct or disclosures made in the course of performing duties related to law enforcement, criminal or news reporting, legal proceedings, or medical treatment.”

A violation is subject to a fine of up to $5,000, up to 6 months in jail, or both.

L.B. 164 bars the publication online of an image containing nudity or sexual conduct without the consent of the person depicted if the transmission or post is “harassment” or causes financial loss to the depicted person, and if it serves no legitimate purpose to the depicted person.

“Harassment” is defined as “conduct directed at the depicted person intended to cause substantial emotional harm.”

Nudity is defined to include buttocks, covered male genitals in a discernibly turgid state, and showing female breasts with less than a fully opaque covering.

There is no requirement that the person in the image be identifiable or that the images were obtained or created with an expectation of privacy.

There is no public interest/concern exception.

L.B. 680 creates a civil cause of action based on the ULC model act.

S.B. 360 is a mandatory filtering bill (part of the HTPA campaign).

It bars the distribution or sale of any product or device that makes content accessible on the internet without active and properly operating filtering software that blocks access to nude or sexual images, obscene material, and any website that facilitates prostitution or human trafficking.

The seller or distributor must make reasonable and ongoing efforts to ensure the filter is working properly.

If the filtering software blocks material that is not obscene and the purchaser or recipient reports it to the seller or distributor, the content must be unblocked within five days. The purchaser or distributor may seek judicial relief to unblock content that is not obscene. The purchaser may also report material believed to be obscene but is not blocked. The seller then has five days to determine if the material is obscene and block it.

The filtering software can be deactivated by the person who sold or distributed it if the purchaser or recipient:

1. Makes a request that it be disabled;
2. Presents identification proving he or she is 18 or older;
3. Receives a written warning from the manufacturer or distributor about the potential dangers of deactivating the filtering software, and the consumer must acknowledge receiving such warning; and
4. Pays a $20 tax and any additional fee charged by the seller or distributor.

H.B. 609 would expand New Hampshire’s existing child pornography law to make it a crime to knowingly or purposely create, distribute, or possess any visual representation of a “partially-clothed child,” where the visual representation is “unrelated to the sale of a commercially available legal product” and are used for “purely prurient purposes.”

“Purely prurient purposes” is defined as “for the specific purpose of sexual gratification or sexual arousal from viewing the visual representations.” It is not clear who must use the image as such.

“Partially-clothed child” and “unrelated to the sale of a commercially available product” are defined.

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

A.B. 878 is a mandatory internet filtering bill (part of the HTPA campaign).

It makes it a violation of New Jersey’s consumer fraud act to manufacture, sell, lease, or distribute any product that makes content on the internet accessible unless it “contains” digital blocking capability that makes any material that is obscene or harmful to minors inaccessible; and manufacture or distribute such a product to a minor unless the digital blocking capability is active and properly operating to make obscene material inaccessible. (Presumably, they mean to sell to a minor, but it is not written that way. It is not clear how a company manufactures to a minor.)

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. Render that “revenge pornography” and sites that “facilitate prostitution” and “sex trafficking” are inaccessible on the product.

“Revenge pornography” is not defined and New Jersey does not have a “revenge pornography” law.

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. The attorney general or the consumer may bring a civil suit if any complaint about under-blocking does not receive a response. Material that is blocked but should have been must be unblocked within five days. A consumer may seek judicial relief if it is not.

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

The bill is identical to S.B. 540.

A.B. 4359 allows anyone whose pictures have been distributed in violation of New Jersey’s “peeping Tom” law to sue for damages. However, the existing law has a provision barring publication of such images without consent, which has been used to prosecute “revenge porn” in several high-profile cases.

A.B. 4359 does have a public interest exception, but the existing law does not.

S.B. 878 is a mandatory internet filtering bill (part of the HTPA campaign).

It makes it a violation of New Jersey’s consumer fraud act to manufacture, sell, lease, or distribute any product that makes content on the internet accessible unless it “contains” digital blocking capability that makes any material that is obscene or harmful to minors inaccessible; and manufacture or distribute such a product to a minor unless the digital blocking capability is active and properly operating to make obscene material inaccessible. (Presumably, they mean to sell to a minor, but it is not written that way. It is not clear how a company manufactures to a minor.)

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. Render that “revenge pornography” and sites that “facilitate prostitution” and “sex trafficking” are inaccessible on the product.

“Revenge pornography” is not defined and New Jersey does not have a “revenge pornography” law.

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. The attorney general or the consumer may bring a civil suit if any complaint about under-blocking does not receive a response. Material that is blocked but should have been must be unblocked within five days. A consumer may seek judicial relief if it is not.

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

The bill is identical to A.B. 878.

S.B. 1115 bars dissemination of material “obscene for minors” to a person 16 years old or younger by a social networking website.

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 attorneys’ 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 attorneys’ fees, or actual damages, whichever is greater.

Actual damages shall consist of compensatory and punitive damages, plus reasonable attorneys’ 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.

S.B. 2917 allows anyone whose pictures have been distributed in violation of New Jersey’s “peeping Tom” law to sue for damages. However, the existing law has a provision barring publication of such images without consent, which has been used to prosecute “revenge porn” in several high-profile cases.

S.B. 2917 has a public interest exception, but the existing law does not.

S.B. 3077 would amend New Jersey’s existing invasion of privacy law to make clear that it is not limited to images captured without permission. Rather, it would explicitly make it illegal to distribute any image of a person if their intimate parts are nude or undergarment-clad without their consent.

“Intimate parts” is defined as “sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast of a person.”

There is no element of the legislation to limit it to images captured when the person has an expectation of privacy, to distribution with an intent to harm, or the requirement that harm occurs. There is no exception to the crime for images that are matters of public interest/public concern or images captured in public or commercial settings.

A violation is subject to a fine of up to $30,000.

Presently, the New Jersey law is ambiguous but appears to be limited to such images if they were captured without consent.

H.B. 437 creates a “right to be forgotten.”

It requires a publisher to remove “inaccurate, irrelevant, inadequate, or excessive” content regarding an individual, and any links or indexes to that content, within thirty days of receiving a request to do so from that individual. The publisher shall not replace or cooperate with another person to replace the removed content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information, or content that refers the reader to another source that provides the removed information.

“Inaccurate, irrelevant, inadequate, or excessive” is defined as content relating to an individual that, after a significant lapse in time from its first publication, is no longer material to current public debate or discourse when considered in light of the demonstrable harm that the information is causing to the individual’s professional, financial, or personal reputation or other interest. It does not include content related to criminal convictions, legal matters relating to violence in which the individual played a substantial role, or content that is of significant current public interest.

A.B. 326 bars the dissemination of a nude or sexual image of a person if the person depicted has not consented and when a reasonable person would have known that the person depicted would not have consented to the dissemination and under circumstances in which the person depicted had a reasonable expectation of privacy.

There is an exception for images disseminated for a legitimate public purpose. That term is not defined.

The law also provides a civil cause of action with the same elements. There is an affirmative defense to the cause of action if the image is a matter of public concern.

A.B. 2005 makes it a crime to intentionally disseminate an image of another person’s “intimate parts” with the intent to cause material harm to the emotional, financial, or physical welfare of another person who is identifiable from the image or information published/displayed with the image; if the image was taken under circumstances when the person in the image had a reasonable expectation of privacy; and the publisher knew or reasonably should have known that the person intended the image to remain private.

There is no exception for public interest/newsworthiness.

A.B. 2056 bars the dissemination of nude images without consent if done with intent to harm the emotional, financial, or physical welfare of the person depicted; if the person depicted is identifiable and had a reasonable expectation of privacy in the creation of the image; and the actor knew or should have known the image was to remain private.

There is an exception for dissemination with a legitimate purpose. The term is not defined.

A.B. 3398 is a mandatory internet filtering bill (part of the HTPA campaign).

It bars the sale or distribution of any computer or mobile device without filtering software that blocks access to “pornography” featuring minors, any “hub that facilitates prostitution” or website “known to facilitate human trafficking.”

“Pornography,” “hub that facilitates prostitution,” or “known to facilitate human trafficking” are not defined in the text or by reference to existing law.

The manufacturer must also:

1. Make a reasonable and ongoing effort to ensure it works properly;
2. Establish a reporting mechanism for owners of devices to report issues with the filtering software; and
3. Unblock content that was incorrectly blocked within five days after being informed by a consumer.

The filtering software may be deactivated upon written request by the consumer if he or she provides verification of being an adult; receives a warning of the dangers of accessing the internet without a filter; and pays a $20 tax.

If a consumer requests a manufacturer unblock filtered content but it remains blocked, the consumer may seek judicial relief.

If a consumer reports content that should be blocked by the manufacturer but does not block it, the consumer or attorney general may sue for damages of up to $500 for each item of content that was reported but was not subsequently blocked. The prevailing party may also recover attorneys’ fees. The legislation does not require the consumer or attorney general to prove in court that the material should have been blocked.

A.B. 4170 bars the sale or rental to a minor of any video game that has received a “mature” or “violent” rating. This may include depictions advocating or glamorizing violent crime, suicide, sexual activity in a violent context, sadomasochism; or advocating or encouraging murder, violent racism, religious violence or the illegal use of drugs or alcohol.

A.B. 5605 is a right of publicity bill that also regulates deep fakes and digital avatars.

A.B. 5981 bars the intentional dissemination of nude images without consent if done with intent to harm the emotional, financial, or physical welfare of a person; if the person depicted is identifiable; if the person depicted had a reasonable expectation of privacy; and the actor knew or should have known that the image was to remain private.

There is an exception for dissemination made with a legitimate purpose. The term is not defined.

S.B. 1505 makes it a crime to intentionally disseminate an image of another person’s “intimate parts” with the intent to cause material harm to the emotional, financial, or physical welfare of another person who is identifiable from the image or information published displayed with the image; if the image was taken under circumstances when the person in the image had a reasonable expectation of privacy; and the publisher knew or reasonably should have known that the person intended the image to remain private.

There is no exception for public interest or newsworthiness.

S.B. 1719 bars the dissemination of nude images without consent if done with intent to harm the emotional, financial, or physical welfare of a person; if the person depicted is identifiable; if the person depicted had a reasonable expectation of privacy in the creation of the image; and the actor knew or should have known that the image was to remain private.

There is an exception for dissemination with a legitimate purpose. The term is not defined.

S.B. 5959 would create a right of publicity as a property right that is transferable and descendible. It would also bar the dissemination of “deep fake” images.

S.B. 533 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Oklahoma and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

S.B. 864 is a mandatory internet filtering bill (part of the HTPA campaign) that requires all devices that allow access to the internet to contain an “active and operating digital blocking capability” that makes obscene material “inaccessible.”

The “digital blocking capability” must ensure “private sexual images published with the consent of all parties” (this term is undefined) are inaccessible. It would also have to make inaccessible “any hub that facilitates prostitution” (undefined), any website “known to facilitate any trafficking in persons” (undefined as to the kind of site or known to whom).

In addition to the bar on manufacturing, distributing, or selling a phone without “active and operating” filtering software, there is a separate section that makes it a misdemeanor to manufacture, distribute, or sell a product that makes content accessible on the Internet without the “digital content blocking capability;” to sell the product to a minor without “activated filters;” or to provide the means to disable the “digital content blocking capability” other than as described below. A violation is subject to one year in jail, a fine of $1,000, or both.

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

The “digital blocking capability” can only be deactivated by an adult who goes through a four-step process:

1. The adult makes a written request.
2. The adult presents identification proving he or she is 18 or older.
3. The adult acknowledges receiving a written warning of the potential dangers of deactivating the “digital blocking capability.”
4. The adult pays a $20 tax plus any additional charges imposed by the distributor.

The business must make reasonable and ongoing efforts to update the filtering software. It must also set up a website or call center to allow reporting of unblocked obscene material or blocked material that is not obscene. Any reports of over-blocking or under-blocking must be reviewed within five days. A consumer may “seek judicial relief” to unblock content that they think is not obscene. They can seek damages of up to $500 for each item that was reported but not subsequently blocked (the bill does not require that the material be judged to be obscene). There are no damages available for material that was reported as incorrectly blocked.

H.B. 109 would impose a 10 percent sales tax on video games rated “M” or “AO.”

H.B. 1974 bars the dissemination or publication of a nude or sexual image unless it is at the request of a recipient or with a recipient’s expressed consent.

Nudity is defined as “human 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 portion thereof below the top of the nipple, or male genitals in a discernibly turgid state.”

Sexually explicit image is defined as “a lewd or lascivious visual depiction of a person’s genitals, pubic area, breast or buttocks or nudity, if the nudity is depicted for the purpose of sexual stimulation or gratification of a person who might view the nudity.”

The image does not have to be of a real person.

H.B. 5475 is a mandatory internet filtering bill (part of the HTPA campaign).

It requires ISPs to provide filtering software that renders “sexual content and/or patently offensive material” inaccessible with any service or product it sells or leases. “Sexual content” is not defined in the bill or by reference. “Patently offensive” is defined by reference to existing law as “so offensive on its face as to affront current standards of decency.”

The bill also requires anyone manufacturing, selling, offering for sale, or otherwise distributing any device that makes content accessible on the internet to block access to “revenge pornography” and any “hub that facilitates prostitution,” and render websites that are “known to facilitate human trafficking” inaccessible. None of these terms are defined in the bill or by reference.

The manufacturer or seller of devices must also make reasonable and ongoing efforts to ensure that the filter is working properly. They must create a website, call center, or another reporting mechanism to allow a consumer to report sexual content or patently offensive material that was not blocked or report blocking of material that is not sexual content or “potentially” offensive. (It seems that “potentially” was used in place of “patently.”) The manufacturer and seller must do this even though the ISP is required to provide the filtering software for this content. There is no mechanism for reporting over-blocking of any other content that must be filtered.

Once a report is made, the distributor has five days to assess the content and unblock material that is not sexual content or patently offensive. If the business does not unblock this content, a consumer may seek judicial relief. However, the legislation does not provide damages or legal fees if the consumer is successful. If the business is “unresponsive” to a request to block sexual content or patently offensive material, the attorney general or consumer may bring a civil suit to block unblocked content. The attorney general or the person may seek damages of $500 for each item of content. There is no time limit for a review by the company for reports of sexual content or patently offensive material that was not blocked.

Finally, the filtering software may be deactivated if the consumer requests in writing that it be disabled; presents proof that he or she is an adult; acknowledges receiving a written warning of the dangers of accessing the internet without filters; and pays a $20 tax plus any charges imposed by the distributor.

H.B. 5500 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Rhode Island and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.B. 5685 is a mandatory internet filtering bill (part of the HTPA campaign).

It requires ISPs to provide filtering software that renders “sexual content and/or patently offensive material” inaccessible with any service or product it sells or leases. “Sexual content” is not defined in the bill or by reference. “Patently offensive” is defined by reference to existing law as “so offensive on its face as to affront current standards of decency.”

The bill also requires anyone manufacturing, selling, offering for sale, or otherwise distributing any device that makes content accessible on the internet to block access to “revenge pornography” and any “hub that facilitates prostitution,” and render websites that are “known to facilitate human trafficking” inaccessible. None of these terms are defined in the bill or by reference.

The manufacturer or seller of devices must also make reasonable and ongoing efforts to ensure that the filter is working properly. They must create a website, call center, or another reporting mechanism to allow a consumer to report sexual content or patently offensive material that was not blocked or report blocking of material that is not sexual content or “potentially” offensive. (It seems that “potentially” was used in place of “patently.”) The manufacturer and seller must do this even though the ISP is required to provide the filtering software for this content. There is no mechanism for reporting over-blocking of any other content that must be filtered.

Once a report is made, the distributor has five days to assess the content and unblock material that is not sexual content or patently offensive. If the business does not unblock this content, a consumer may seek judicial relief. However, the legislation does not provide damages or legal fees if the consumer is successful. If the business is “unresponsive” to a request to block sexual content or patently offensive material, the attorney general or consumer may bring a civil suit to block unblocked content. The attorney general or the person may seek damages of $500 for each item of content. There is no time limit for a review by the company for reports of sexual content or patently offensive material that was not blocked.

Finally, the filtering software may be deactivated if the consumer requests in writing that it be disabled; presents proof that he or she is an adult; acknowledges receiving a written warning of the dangers of accessing the internet without filters; and pays a $20 tax plus any charges imposed by the distributor.

H.B. 3249 is a mandatory internet filtering bill (part of the HTPA campaign) that requires that all devices that allow access to the internet to come with an “active and operating digital blocking capability” that makes obscene material “inaccessible.”

The “digital blocking capability” must also make “inaccessible” child pornography (not defined), revenge pornography (the state does not have a “revenge porn” law), hubs that facilitate prostitution (undefined), and websites that facilitate trafficking in persons (defined by reference to a separate statute).

The bill makes it illegal to manufacture, distribute, or sell a product that makes content accessible on the internet without the “digital blocking capability,” to sell the product to a minor without activated filters, or to provide the means to disable the “digital blocking capability.” Any business that violates the section will be deemed to have violated three 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 a person under age 18. 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 minors. This is also a felony subject to up to 10 years in prison.

The attorney general may seek injunctive relief against any business the “violates the provisions of this article.”

The “digital blocking capability” can only be deactivated by an adult who goes through a three-step process:

1. The adult makes a written request.
2. The adult presents identification proving he or she is 18 or older.
3. The adult acknowledges receiving a written warning of the potential dangers of deactivating the “digital blocking capability.”

The business must make reasonable and ongoing efforts to update the filtering software. It must also set up a website or call center to allow reporting of unblocked obscene material or blocked material that is not obscene. Any reports of over-blocking or under-blocking must be reviewed within five days. A consumer may “seek judicial relief” to unblock content that they think is not obscene. A consumer or the attorney general can sue for failing to respond in a timely fashion to a report that material was not blocked which the reporter believes is obscene.

S.B. 567 bars the dissemination of any nude visual depiction of another person without their consent, and the person knows or has reason to know they are not licensed or privileged to do so, and the person depicted suffers emotional harm or embarrassment.

Visual depictions include photographic images and drawings.

H.B. 1154 is a mandatory internet filtering bill (part of the HTPA campaign).

It makes it a class 2 misdemeanor if a “person” knowingly sells a product that makes content accessible on the internet without “digital blocking software” that makes an attempt to render inaccessible by default a website displaying obscene material, child pornography, “revenge pornography,” or a website that facilitates prostitution or human trafficking.

“Revenge pornography” is not defined, although there is a definition for “nonconsensual pornography” in a separate part of the bill.

Obscene material is defined as the three prongs of the Miller test (not by reference to South Dakota’s existing law).

It is also a misdemeanor to deactivate the “digital blocking software” without first requiring that:

1. The consumer request that it be deactivated;
2. The consumer present a state-issued driver’s license or identification card or passport that verifies that he or she is 18 years old or older;
3. The customer acknowledge receiving a “warning” of the potential danger of deactivating the filter; and
4. The consumer pay a $20 tax to the business (which must be remitted to the state) and any additional fee imposed by the business for this service.

The attorney general will prepare a document with everything the warning must include.

In a separate part of the bill, it bars any distributor from manufacturing, selling, or otherwise distributing a product that makes content accessible “to” the internet unless it contains filtering software that prohibits access to a website displaying obscene material or facilitating prostitution or human trafficking and child pornography by default. The filters must also block access to sites that display “nonconsensual pornography,” although there is no “by default” language. There is no explanation what the term “by default” means.

“Nonconsensual pornography” is defined as an image of a person nude “if the image or video contains personal identification information of the depicted person without the depicted person’s content.” Consent appears to go to the “personal identification information,” which is not defined in the bill. The definition of nonconsensual pornography does not reference the existing state law.

The bill bars the blocking of:

• social media websites that allow reporting of obscene material and have a process for reviewing and removing such content,
• websites that serve primarily as search engines, and
• websites that display complete movies rated “R” or below.

In addition, the distributor must make a reasonable and continuing effort to make the filters work properly. They must also set up a website or call center to receive reports of over-blocking or under-blocking of the content subject to the bill.

If a consumer reports a website that is not displaying the prohibited content, the content must be unblocked within five business days. If it is not, the consumer can sue for injunctive relief. There is no remedy available to the website under the bill.

If a distributor is unresponsive to a report of under-blocking, the attorney general or a consumer can sue. The prevailing party can seek attorneys fees, costs, and “other forms of relief.” It is not clear that the material must be obscene, only that the distributor was not responsive to the report. There is an affirmative defense if the material was displayed by an institution or organization with a scientific, educational, or other instructional purpose for displaying the material.

H.B. 98 would amend Texas’ existing nonconsensual distribution of nude images law that was held to be unconstitutional, to require that the person know or should know the image was created or obtained under circumstances where the depicted individual had a reasonable expectation of privacy. Also, the bill would require that the disclosure be made with the intent to harass, annoy, alarm, abuse, torment, or embarrass the depicted individual.

Amendment 05/20/2o19:

The bill was amended so that it only requires that the image be distributed with an intent to harm the person depicted, but harm is not defined.

S.B. 97 would amend Texas’ existing nonconsensual distribution of nude images law that was held to be unconstitutional, to require that the person know or have reason to believe that the image was created or obtained under circumstances where the depicted individual had a reasonable expectation of privacy. Also, the bill would add an intent to “harm” element, but “harm” is not defined.

S.B. 342 would amend Texas’ existing nonconsensual distribution of nude images law that was held to be unconstitutional, to require that the person know or should know the image was created or obtained under circumstances where the depicted individual had a reasonable expectation of privacy. Also, the bill would require that the disclosure be made with the intent to harass, annoy, alarm, abuse, torment, or embarrass the depicted individual.

S.B. 2373 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in Texas and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

H.R. 2896 bars the distribution of an “intimate visual depiction” if done with the knowledge of or reckless disregard for the lack of consent by the person depicted in the image; the reasonable expectation of the individual that the depiction would remain private; and without an objectively reasonable belief that such distribution touches upon a matter of public concern.

An “intimate visual depiction” is a photographic image of a person 18 years old or older engaging in “sexually explicit conduct” 0r if the naked genitals, anus, pubic area, or post-pubescent female nipple of the individual are visible; and the content is not simulated whether in the original or modified format.

However, “sexually explicit conduct” is defined to include simulated sexual activity or display of the genitals, pubic area, or breasts of a female. It also includes actual or simulated sadomasochistic abuse.

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

H.R. 4027 limits legal protection for the removal of content only for content that is unlawful. Presently, the protections allow websites to remove material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

S. 1914 would amend Section 230 of the CDA.

In order to be exempt from liability for user-generated content posted on a site under section 230, the site must be certified by the FTC as engaging in unbiased content moderation.

Biased content moderation is defined as: 

“(I) the provider moderates information provided by other information content providers in a manner that –

(aa) is designed to negatively affect a political party, political candidate, or political viewpoint; or

(bb) disproportionately restricts or promotes access to, or the availability of, information from a political party, political candidate, or political viewpoint

or (II) an officer or employee of the provider makes a decision about moderating information provided by other information content providers that is motivated by an intent to negatively affect a political party, political candidate, or political viewpoint.”

There is an exception for a business necessity or the actions of an employee if the provider immediately discloses the actions and fires the employee.

The certification requirement applies to websites with 30,000,000 monthly users in the US. Certification is good for two years.

This is a variation on the “stop social media censorship” bills.

H.R. 2896 bars the distribution of an “intimate visual depiction” if done with the knowledge of or reckless disregard for the lack of consent by the person depicted in the image; the reasonable expectation of the individual that the depiction would remain private; and without an objectively reasonable belief that such distribution touches upon a matter of public concern.

An “intimate visual depiction” is a photographic image of a person 18 years old or older engaging in “sexually explicit conduct” 0r if the naked genitals, anus, pubic area, or post-pubescent female nipple of the individual are visible; and the content is not simulated whether in the original or modified format.

However, “sexually explicit conduct” is defined to include simulated sexual activity or display of the genitals, pubic area, or breasts of a female. It also includes actual or simulated sadomasochistic abuse.

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

Identical to H.R. 2896.

H.B. 270 would amend Utah’s existing nonconsensual distribution law to remove the intent to harm element and replace it with “knows or should know that the distribution would cause a reasonable person to suffer emotional distress or harm.”

The existing law does not have a public interest or newsworthy exception.

S.B. 185 requires a publication that publishes or a website that posts booking photos to remove and destroy a booking photo within 30 days of a person submitting a request for removal and destruction.

The request may be made for criminal charges on which the person was acquitted or not prosecuted or was expunged, vacated, or pardoned; and if the person submits proof of these results.

If the publication or website does not remove and destroy the booking photo, the county may impose a civil penalty of $50 per day until it does so, and the publication or website is liable for legal costs incurred by the person in relation to the failure to remove and destroy the booking photograph.

The publication or website may not charge a fee of more than $50 to do so.

H.B. 1592 is a mandatory filtering bill (part of the HTPA campaign).

It bars the distribution or sale of any product that makes content accessible on the internet without active and properly operating filtering software that blocks access to obscene material, revenge pornography, and any website that facilitates the commission of adultery, assignations, prostitution, or human trafficking.

The blocked material is defined by reference to existing state law except for obscenity, which is not defined. Virginia’s revenge porn law has a malicious intent requirement.

The seller or distributor must make reasonable and ongoing efforts to ensure the filter is working properly.

If the filtering software blocks material that is not obscene and the purchaser or recipient reports it to the seller or distributor, the content must be unblocked within five days. The purchaser or distributor may seek judicial relief to unblock content that is not obscene. There is no way to unblock any other category of content. Nor can anyone other than the purchaser request to unblock content that is not obscene.

The filtering software can be deactivated by the person who sold or distributed it if the purchaser or recipient:

1. Makes a request that it be disabled;
2. Presents identification proving he or she is 18 or older;
3. Receives a written warning from the manufacturer or distributor of the potential dangers of deactivating the filtering software, and acknowledges receiving the warning; and
4. Pays a $20 tax and any additional fee charged by the seller or distributor.

A violation shall be considered a prohibited practice subject to the enforcement provisions of the Virginia Consumer Protection Act. Any violation is also subject to a civil suit by the consumer, and the attorney general may seek injunctive relief.

H.B. 2635 is a variation of the “Stop Social Media Censorship” legislation. It does two things:

First, it bars “social media websites” from operating in Virginia without a license issued by the State Corporations Commission. The application for a license must include:

1. The social media website’s policies regarding the deletion or censoring of the religious or political speech of users;
2. The social media website’s policies regarding the use of algorithms that identify users or content for deletion or censoring;
3. A certification by the operator that the social media website will be operated to meet the requirements of this chapter; and 
4. A bond in the form and the amount satisfactory to the Commission sufficient to ensure payment of any judgments that in the Commission’s discretion may reasonably be expected for violations of the “no takedown rule.”

Also, the website must submit an annual report to the Commission concerning each action instituted against the site under this legislation with the status and resolution of each action.

Second, it creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they purposely delete, censor, or use an algorithm to suppress the user’s “political” or “religious” speech.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” speech if it calls for immediate acts of violence or is “obscene” or “pornographic.”

Definitions:

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

S.J. 4002 would create a subcommittee to study “issues related to firearms, factors that lead to aggressive and violent behavior, and strategies to ensure the safety of citizens” in Virginia.

The resolution specifically calls for “an analysis of the causation between individual violence and domestic violence, substance abuse, mental illness, criminal history, societal violence, movies, video games, and any other potential factors identified by the joint subcommittee.”

S.B. 523 is a mandatory internet filtering bill (part of the HTPA campaign).

It bars the distribution or sale of any product that makes content accessible on the internet without active and properly operating filtering software that blocks access to obscene material, revenge pornography, and any website that facilitates prostitution or human trafficking. There is an exception for any movie rated “R” or below by the MPAA rating system.

The seller or distributor must make reasonable and ongoing efforts to ensure that the filter is working properly.

If the filtering software blocks material that is not obscene and the purchaser or recipient reports it to the seller or distributor, the content must be unblocked within five days. The purchaser or distributor may seek judicial relief to unblock content that is not obscene. There is no way to unblock any other category of content. Nor can anyone other than the purchaser request to unblock content that is not obscene.

The filtering software can be deactivated by the person who sold or distributed it if the purchaser or recipient:

1. Makes a request that it be disabled;
2. Presents identification proving he or she is 18 or older;
3. Receives from the manufacturer or distributor a written warning of the potential dangers of deactivating the filtering software and acknowledges receiving the warning; and
4. Pays a $20 tax and any additional fee charged by the seller or distributor.

S.B. 662 creates a private cause of action to allow any user of a “social media website” to sue the owner or operator of the site if they reside in West Virginia and they purposely delete, censor or use an algorithm to suppress the user’s “political” or “religious” speech.

“Political speech” means speech relating to: the state, the government, the body politic, public administration or governmental policymaking. It includes speech by the government or candidates for office and any discussion of social issues. It does not include speech concerning the administration or the law relating to civil aspects of government.

“Religious speech” is defined as a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain the greater questions like how things were created, what humans should or should not be doing, and what happens after death.

“Social media website” means a website or application that enables users to communicate with each other by posting information, comments, messages, or images and: (A) Is open to the public; (B) Has more than 75,000,000 subscribers; and (C) Has not been specifically affiliated with any one religion or political party from its inception.

“Algorithm” is defined as a set of instructions designed to perform a specific task.

Damages:

The user can seek statutory or actual damages and punitive damages if “aggravating factors” are present. “Aggravating factors” is not defined.

The “social media website” is barred from claiming at trial that the deleted or suppressed speech is “hate speech” as a defense to removing or suppressing.

“Hate speech” means a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code.

Immunity from liability:

The social media website is immune from liability if it deletes or censors a user’s speech or uses an algorithm to “disfavor” or “censure” to hide the speech if it calls for immediate acts of violence, is “obscene” or “pornographic.”

“Obscene” is defined as, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

“Pornographic” is not defined.

An Act to amend 948.12 (1m) (intro.), 948.12 (1m) (b), 948.12 (1m) (c), 948.12 (2m) (intro.), 948.12 (2m) (b), 948.12 (2m) (c) and 971.23 (11) (b); and to create 948.12 (1) of the statutes; Relating to: possession of child pornography and providing a penalty.

A.B. 71 would expand the definition of child pornography to include depicting a minor for the purpose of sexual stimulation or gratification of any person who may view the depiction, where the depiction does not have serious literary, artistic, political, or scientific value.

It would make it illegal to possess or distribute such a picture.

There is no requirement that the person who possesses or distributes the image know or should know that the minor was depicted for the purpose of sexual stimulation or gratification.

S.B. 68 would expand the definition of child pornography to include depicting a minor for the purpose of sexual stimulation or gratification of any person who may view the depiction, where the depiction does not have serious literary, artistic, political, or scientific value.

It would make it illegal to possess or distribute such a picture.

There is no requirement that the person who possesses or distributes the image know or should know that the minor was depicted for the purpose of sexual stimulation or gratification.