HB4423 H SI AM #1

Valentino 3289

The Committee on Senior, Children, and Family Issues moves to amend the bill by striking everything after the enacting clause and inserting in lieu thereof the following:

"ARTICLE 7L. PROTECTION OF MINORS FROM HARMFUL MATERIAL ON THE INTERNET.

§55-7L-1. Protection of minors from harmful material on internet; purpose; defining terms;

establishing liability; providing exceptions; and setting effective date.

(a) The provisions of this section are intended to provide a civil remedy against commercial entities who distribute material harmful to minors. Due to advances in technology, the universal availability of the internet; and absence of limited age verification requirements, minors are exposed to pornography earlier in age. Pornography contributes to hyper-sexualization of teens and pre-pubescent children and may lead to low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior. Pornography may also impact brain development and functioning, contribute to emotional and medical illnesses; shape deviant sexual arousal, and lead to difficulty in forming or maintaining positive, intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction.

(b) For purposes of this section:

"Commercial entity" includes corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized entities.

"Distribute" means to issue, sell, give, provide, deliver, transfer, transmit, circulate, or disseminate by any means.

"Internet" means the international computer network of both federal and non-federal interoperable packet switched data networks.

"Material harmful to minors" is defined as all of the following:

Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal, or designed to pander to, the prurient interest.

Any of the following material that exploits, is devoted to, or principally consists of descriptions of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors:

Pubic hair, anus, vulva, genitals, or nipple of the female breast.

Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.

Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibition, or any sexual act.

The material taken as a whole lacks serious literary, artistic, political or scientific value.

"Minor" means any person under the age of eighteen years.

"News-gathering organization" means any of the following:

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 such employment with the newspaper, news publication, or news source.

An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service, who can provide documentation of such employment with a radio broadcast station, television broadcast station, cable television operator, or wire service.

"Publish" means to communicate or make information available to another person or entity on a publicly available internet website.

"Reasonable age verification methods" include verifying that the person seeking to access the material is 18 years or older by using any of the following methods:

Provide a digitized identification card as defined in §17B-2-1 of this code.

Require the person attempting to access the material to comply with a commercial age verification system that verifies in one or more of the following ways:

Government-issued identification.

Any commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the material is at least 18 years of age or older.

"Substantial portion" means more than 33 and one-third percent of the total material on a website meets the definition of "material harmful to minors" as defined by 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 can include, but is not limited to, records of mortgage, education, and employment entities.

(1) Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of the individuals attempting to access the material.

(2) 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.

(A) Any commercial entity that is found to have violated subsection (c)(1) of this section shall be liable to an individual for damages resulting from a minor’s accessing the material, including court costs and reasonable attorney fees as ordered by the court.

(B) Any commercial entity that is found to have knowingly retained identifying information of the individual after the access has been granted to the individual shall be liable to the individual for damages resulting from retention of the information in the amount of $1,000 for each day the information is unlawfully retained, together with court costs, and reasonable attorney fees and costs to be determined by the court.

(d) Exceptions.

(1) This section shall not apply to any bona fide news or public interest broadcast, website video, report, or event and shall not be construed to affect the rights of any news-gathering organization.

(2) No internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated the provisions of this section solely by providing access or connection to or from a website or other information or content on the internet or a facility, system, network not under that provider’s control including transmission, downloading, intermediate storage, access software, or other to the extent such provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors.

(e) This section becomes effective upon passage.

ARTICLE 9. PROTECTION OF MINORS FROM UNFILTERED DEVICES ACT.

§46A-9-1. Title.

This act shall be known as the Protection of Minors from Unfiltered Devices Act.

§46A-9-2. Definitions.

As used in this article, the following terms have the following meanings:

(a) "Activate" means the process of powering on a device and associating the device with a new user account.

(b) "Device" means a tablet, smart phone or any electronic device capable of accessing and displaying the Internet and streaming or downloading content from the Internet, manufactured on or after the operative date of this act as provided in §46A-9-7 of this code.

(c) "Filter" means software installed on a device that is capable of preventing the device from accessing or displaying material that is harmful to minors through browsers, search engines, or Internet accessible software applications.

(d) "Harmful to minors" means any description or representation in any form of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:

(1) Taken as a whole, appeals to the prurient interest of 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) Taken as a whole, does not have serious value for minors, which includes only serious literary, artistic, political, or scientific value for minors.

(e) "Internet" means the global information system that is logically linked together by a globally unique address space based on the Internet protocol (IP), or its subsequent extensions, or other IP-compatible protocols, or that provides, uses, or makes accessible, either publicly or privately, high-level services layered on communications and related infrastructure.

(f) "Manufacturer" means a person or entity:

(1) Engaged in the business of manufacturing a device that holds the patent for the device it manufactures; and

(2) Has a commercial designated registered agent as provided under §31D-5-501 of this code.

(g) "Minor" means an individual under the age of 18 years who is not emancipated, married, or a member of the armed forces of the United States.

(h) "Password" means a string of characters or other secure method used to enable, deactivate, modify, or uninstall a filter on a device.

(i) "Smart phone" means an electronic device that combines a cellular phone with a handheld computer, typically offering Internet access through a browser or search engine, data storage, and text and email capabilities.

(j) "Tablet" means a mobile device that is equipped with a mobile operating system, touchscreen display, and rechargeable battery; and that has the ability to support access to a cellular network.

§46A-9-3. Filters required, enactment date.

Beginning January 1, 2025, a manufacturer shall manufacture a device that, when activated in this state, shall automatically enable a filter that does all of the following:

(a) When enabled, prevents the user from accessing material that is harmful to minors on any of the following:

(1) Mobile data networks;

(2) Internet browsers or search engines;

(3) Wired Internet networks;

(4) Wireless Internet networks.

(b) Notifies the user of the device when the filter blocks the device from accessing a website.

(d) Reasonably precludes a user, other than a user with a password, the opportunity to deactivate, modify, or uninstall the filter.

§46A-9-4. Manufacturer liability.

(a) A manufacturer of a device is liable to a minor in this state if all of the following occur:

(1) The device is activated in this state;

(2) The device does not, upon activation in this state, enable a filter that complies with the requirements described in §46A-9-3 of this code.

(3) The minor accesses material that is harmful to minors on the device.

(b) Nothing in this act affects any private right of action existing under other law, including contract.

(c) This section does not apply to a manufacturer that makes a good faith effort to provide a device that, upon activation in this state, automatically enables a generally accepted and commercially reasonable method of filtration in accordance with this act and industry standards.

§46A-9-5. Penalties.

(a) If a court finds that a manufacturer is liable under §46A-9-4 of this code, the court may award the plaintiff actual damages.

(b) A class action may be brought under this act in accordance with the West Virginia Rules of Civil Procedure.

§46A-9-6. Attorney General's enforcement powers.

(a) When the Attorney General has reason to believe that a manufacturer has violated or is violating this act, the Attorney General, acting in the public interest, may bring an action in the name of the state against the manufacturer to do any of the following:

(1) To enjoin any action that constitutes a violation of this act by obtaining a temporary injunction or preliminary or permanent injunction;

(2) To recover from the alleged violator a civil penalty not to exceed $5,000 per violation and not to exceed $50,000 in the aggregate, as determined by the court;

(3) To recover from the alleged violator the Attorney General's reasonable expenses, investigation costs, and attorney's fees;

(4) To obtain other appropriate relief as provided under this act.

(b) The Attorney General may issue a subpoena to any person and conduct depositions in aid of any investigation or inquiry conducted under this act.

(c) The Attorney General may seek revocation of any license or certificate authorizing a manufacturer to engage in business in this state.

(d) For purposes of assessing a penalty under this section, a manufacturer is considered to have committed a separate violation for each device manufactured on or after January 1, 2025.

§46A-9-7. Private cause of action.

(a) Any parent or legal guardian of a minor who accesses pornographic content that is harmful to minors, which content is accessible as a result of a violation of this act, may bring a private cause of action in any court of competent jurisdiction against a manufacturer who manufactured a device in violation of this act.

(b) A prevailing plaintiff may recover all of the following:

(1) Actual damages; or, in the discretion of the court, when actual damages are difficult to ascertain due to the nature of the injury, liquidated damages in the amount of $50,000 for each violation;

(2) Punitive damages in an amount determined by the court when the violation is found by clear and convincing evidence to be willful;

(3) Nominal damages;

(4) Court costs, attorney's fees, and other relief as the court deems appropriate.

(c) Nothing in this act shall preclude the bringing of a class action lawsuit against a manufacturer who knowingly and willfully violates §46A-9-3 of this code.

§46A-9-8. Effective date.

This act shall become effective 90 from passage."

Adopted

Rejected