HB4867 S JUD AM #1 3-3
Mowen 7888
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
§49A-1-101. Definitions.
As used in this chapter:
“Application” means, as used in this section, a computer software program designed to run on a smartphone, computer tablet, mobile device, smart television, laptop, desktop, or other application enabled devices.
“Commercial entity” includes a for-profit or non-profit corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized entity.
“Digital identification” means information stored on a digital network that may be accessed by a commercial entity and that serves as proof of the identity of an individual. It includes, but is not limited to, the West Virginia Mobile ID.
“Distribute” means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means.
"Intentionally" means conduct that is willfully engaged and the consequences of such conduct results in a violation of this article.
“Internet” means the international computer network of both federal and non-federal interoperable packet switched data networks.
“Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware by documentation or action that the person's conduct is of that nature or that the circumstance exists.
“Minor” means any person under 18 years old.
“News-gathering organization” means any of the following:
(1) an employee of a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest, while operating as an employee as provided in this subsection, who can provide documentation of employment with the newspaper, news publication, or news source; or
(2) an employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee as provided in this subsection, who can provide documentation of employment.
“Personally identifiable information” means any information about an individual maintained by an agency, including:
(1) any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and
(2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.
“Publish” means to communicate or make information available to another person or entity on a publicly available Internet website or application.
“Sexual conduct” means actual or explicitly simulated acts of masturbation, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals, pubic area, buttocks, or breast.
“Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
(1) appeals to the prurient, shameful, or morbid interest to minors;
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) is, when taken, as a whole, lacking in serious literary, artistic, political, or scientific value for minors.
"Substantial portion" means more than 33-1/3% of total material on a website or application which meets the definition of "sexual material harmful to minors" as defined in this section.
“Transactional data” means a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event. Transactional data includes records from mortgage, education, and employment entities.
§49A-1-102. Reasonable age verification methods.
(a) Any commercial entity that knowingly and intentionally publishes or distributes sexual material harmful to minors on an Internet website that contains a substantial portion of such materials shall, in order to prove that an individual is 18 years of age or older, require an individual to:
(1) provide digital identification; or
(2) comply with a commercial or governmental age verification system that verifies age using:
(A) government-issued identification which may be digital identification; or
(B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.
(b) Any commercial entity or third party that performs the required age verification shall not retain any identifying information of the individual after access has been granted to the material: Provided, That nothing in this subsection shall be interpreted to require the deletion of data that was otherwise held or obtained by a commercial entity or third party which the commercial entity, or third party, held prior to the age verification or which is, or was, otherwise held by a commercial entity or third party and was not gained or compiled as a part of the age verification process.
§49A-1-103. Applicability of Article.
(a) This article may not be construed to affect the rights of a news-gathering organization or public interest broadcasts.
(b) An Internet service provider, or its affiliates or subsidiaries, a search engine, or a cloud service provider shall not be held to have violated the provisions of this article solely for proving access or connection to or from a website or other information or content on the internet or on a facility, system, or network, including transmission, downloading, intermediate storage, access software, or other services to the extent the provider or search engine is not responsible for the creation of the content that constitutes sexual material harmful to minors.
§49A-1-104. Liability for failing to perform reasonable age verification for sexual material harmful to minors; damages; liability for retention of data; damages; creation of cause of action; and statute of limitations.
(1) Actual damages for financial, physical, and emotional harm incurred by the person bringing the action, if the court determines that the harm is a direct consequence of the violation or violations; and
(2) An award of reasonable attorney fees and court costs.
(b) An award of damages pursuant to this section may not be imposed for violations occurring more than five years before the action is brought and no award of damages may be imposed for any violation that occurred prior to the enactment of this section during the 2024 Regular Session of the West Virginia Legislature.
§49A-1-105. Injunction by action of attorney general; civil penalties; basis of civil penalties; and statute of limitations.
(a) If the attorney general believes that a commercial entity is knowingly and intentionally violating or has knowingly violated this article, and the action is in the public interest, the attorney general may bring an action in the circuit court located where a minor child, or individual, has accessed the sexual material harmful to minors, or in the circuit court located where an individual resides who has had any identifiable information improperly retained, used, shared, or sold, against a commercial entity or third party to enjoin the violation, recover a civil penalty for violating this article. If a court of competent jurisdiction finds that the commercial entity has engaged in a violation of this article, it may assess a civil penalty for each violation of this article in addition to any other damages that may have been incurred, as follows:
(1) $10,000 per day that the commercial entity operates an Internet website in violation of the age verification requirements of this article; and
(2) $10,000 per instance when the commercial entity retains identifying information in violation of subsection (b) of this section.
Adopted
Rejected