AL
Alabama House Bill HB441

Alabama 2023 Regular Session

Alabama House Bill HB441 Compare Versions

Only one version of the bill is available at this time.
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33 RUWWNY-1
44 By Representatives Robbins, Kiel, Stadthagen
55 RFD: Judiciary
66 First Read: 09-May-23
77 2023 Regular Session
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1313 6 RUWWNY-1 05/04/2023 CMH (L) bm 2023-639
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1515 SYNOPSIS:
1616 This bill would provide legislative findings
1717 regarding the public health crisis caused by
1818 pornography.
1919 This bill would prohibit the distribution of
2020 material harmful to minors under 18 years of age.
2121 This bill would require distributors of material
2222 harmful to minors to take certain reasonable measures
2323 to ensure their published material is not distributed
2424 to minor children by use of age-verification
2525 procedures.
2626 This bill would require distributors of material
2727 harmful to minors to pay a licensing fee to distribute
2828 pornography in this state and would provide for the
2929 distribution of the fee.
3030 This bill would also provide penalties for
3131 violations.
3232 Section 111.05 of the Constitution of Alabama of
3333 2022, prohibits a general law whose purpose or effect
3434 would be to require a new or increased expenditure of
3535 local funds from becoming effective with regard to a
3636 local governmental entity without enactment by a 2/3
3737 vote unless: it comes within one of a number of
3838 specified exceptions; it is approved by the affected
3939 entity; or the Legislature appropriates funds, or
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6969 provides a local source of revenue, to the entity for
7070 the purpose.
7171 The purpose or effect of this bill would be to
7272 require a new or increased expenditure of local funds
7373 within the meaning of the amendment. However, the bill
7474 does not require approval of a local governmental
7575 entity or enactment by a 2/3 vote to become effective
7676 because it comes within one of the specified exceptions
7777 contained in the amendment.
7878 A BILL
7979 TO BE ENTITLED
8080 AN ACT
8181 Relating to consumer protection; to provide legislative
8282 findings; to provide definitions; to provide prohibitions on
8383 the online distribution of material harmful to minors; to
8484 require a license for the distribution of material harmful to
8585 minors; and to provide civil and criminal penalties for
8686 violations; and in connection therewith would have as its
8787 purpose or effect the requirement of a new or increased
8888 expenditure of local funds within the meaning of Section
8989 111.05 of the Constitution of Alabama of 2022.
9090 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
9191 Section 1. The Legislature finds and declares the
9292 following:
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122122 (1) The pervasive use of pornography is creating a
123123 public health crisis.
124124 (2) Pornography is contributing to the
125125 hypersexualization of children and teens in our society.
126126 (3) Due to advances in technology and the universal
127127 availability of the Internet, young children are more easily
128128 exposed to pornography than ever before, with the average age
129129 of exposure now being only 11 to 12 years of age.
130130 (4) Pornography treats people as objects and
131131 commodities for the viewer's use.
132132 (5) Pornography normalizes violence and abuse, often
133133 depicts rape and abuse as being harmless fun, and increases
134134 the demand for sex trafficking, prostitution, and child
135135 pornography.
136136 (6) Pornography is a public health crisis leading to a
137137 broad spectrum of individual and public health impacts and
138138 societal harms. This state has a compelling governmental
139139 interest to take action, and this act serves as the most
140140 narrowly tailored approach to prevent pornography exposure and
141141 addiction to children and to educate individuals and families
142142 concerning its very serious harms.
143143 Section 2. As used in this act, the following terms
144144 have the following meanings:
145145 (1) COMMERCIAL ENTITY. The term includes corporations,
146146 limited liability companies, partnerships, limited
147147 partnerships, sole proprietorships, or other legally
148148 recognized entities.
149149 (2) DISTRIBUTE. To issue, sell, give, provide, deliver,
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179179 transfer, circulate, or disseminate online.
180180 (3) DIVISION. The Consumer Protection Division of the
181181 Office of the Attorney General.
182182 (4) HARMFUL TO MINORS. The term as defined under
183183 Section 13A-12-200.1, Code of Alabama 1975.
184184 (5) MINOR. An individual under 18 years of age.
185185 (6) NEWS-GATHERING ORGANIZATION. Any of the following:
186186 a. A newspaper, news publication, or news source,
187187 printed or on an online platform, of current news and public
188188 interest.
189189 b. A radio broadcast station, television broadcast
190190 station, or cable television operator.
191191 (7) PUBLISH. To communicate or make information
192192 available to another person on a publicly available Internet
193193 website.
194194 (8) REASONABLE AGE VERIFICATION METHODS. Verifying that
195195 the individual seeking to access the material is 18 years of
196196 age or older by requiring the person attempting to access the
197197 material to comply with a commercial age verification system
198198 that verifies age in one or more of the following ways:
199199 a. Government-issued identification.
200200 b. Any commercially reasonable method that relies on
201201 public or private transactional data to verify the age of the
202202 individual attempting to access the information is at least 18
203203 years of age or older.
204204 (9) SUBSTANTIAL PORTION. More than 33 1/3 percent of
205205 total material on a website.
206206 (10) TRANSACTIONAL DATA. A sequence of information that
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236236 documents an exchange, agreement, or transfer between an
237237 individual, commercial entity, or third party used for the
238238 purpose of satisfying a request or event. The term includes,
239239 but is not limited to, records from mortgage, education, and
240240 employment entities.
241241 Section 3. (a) Any commercial entity that knowingly and
242242 intentionally publishes or distributes material harmful to a
243243 minor on the Internet from a website that contains a
244244 substantial portion of material harmful to minors shall be
245245 held liable if the entity fails to perform reasonable age
246246 verification methods to verify the age of individuals
247247 attempting to access the material.
248248 (b) A commercial entity that is found to have violated
249249 this section shall be liable to an individual for damages
250250 resulting from a minor accessing the material harmful to
251251 minors, including court costs and reasonable attorney fees as
252252 ordered by the court.
253253 Section 4. (a) Any commercial entity or third party
254254 that performs the required age verification shall not retain
255255 any identifying information to the individual after access has
256256 been granted to the material.
257257 (b) A commercial entity that is found to have knowingly
258258 retained identifying information of the individual, as
259259 prohibited in subsection (a), shall be liable to the
260260 individual for damages resulting from retaining the
261261 identifying information, including court costs and reasonable
262262 attorney fees as ordered by the court.
263263 Section 5. Nothing in this act shall apply to a bona
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293293 fide broadcast, website video, report, or event of a
294294 news-gathering organization and shall not be construed to
295295 affect the rights of any news-gathering organization.
296296 Section 6. No Internet service provider, or its
297297 affiliates or subsidiaries, search engine, or cloud service
298298 provider shall be held to have violated this act solely for
299299 providing access or connection to or from a website or other
300300 information or content on the Internet or a facility, system,
301301 or network not under that provider's control, including
302302 transmission, downloading, intermediate storage, or access
303303 software to the extent the provider is not responsible for the
304304 creation of the content of the communication that constitutes
305305 material harmful to minors.
306306 Section 7. (a) A commercial entity shall not publish
307307 online or allow access on a website to material that is
308308 harmful to minors in this state only by satisfying both of the
309309 following conditions:
310310 (1) The person registers with the division and pays to
311311 the division a one-time registration fee and an annual license
312312 fee each year thereafter. The division, by rule, may establish
313313 the required fees.
314314 (2) The person certifies meeting the age verification
315315 requirements of Section 3.
316316 (b) Any fees collected under this section shall be
317317 deposited as follows and shall be budgeted and allotted in
318318 accordance with Sections 41-4-80 through 41-4-96, Code of
319319 Alabama 1975, and Sections 41-19-1 through 41-19-12, Code of
320320 Alabama 1975, but shall not be limited by the fiscal year
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350350 appropriation cap:
351351 (1) Fifty percent of fees collected shall be deposited
352352 into the State General Fund to the credit of the Office of the
353353 Attorney General.
354354 (2) Fifty percent of fees collected shall be deposited
355355 into the Special Mental Health Trust Fund in the State
356356 Treasury.
357357 (c) The Office of the Attorney General may adopt rules
358358 to implement and administer this section.
359359 Section 8. (a) Any person who engages in any act or
360360 practices that violate Section 3 or 4 shall be liable for a
361361 civil penalty of up to two thousand dollars ($2,000) for each
362362 violation.
363363 (b) The Office of the Attorney General may recover the
364364 civil penalty by either of the following:
365365 (1) Civil action against the person engaging in the
366366 violative act or practice.
367367 (2) Agreement and settlement of a civil action filed by
368368 stipulation of terms by the person engaging in the violative
369369 act or practice and the director of the division by authority
370370 of the Attorney General, and by payment of any agreed upon
371371 amount by the person against whom the claim was filed.
372372 Section 9. (a) If the Attorney General has reason to
373373 believe that a person has engaged in, or is engaging in, a
374374 practice that violates this act, he or she may administer
375375 oaths and affirmations, subpoena witnesses or matter, and
376376 collect evidence. The subpoena shall inform the party served
377377 of his or her rights under this subsection.
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407407 (b) The Attorney General may apply for an emergency
408408 injunction or other necessary relief to enjoin any violation
409409 of Section 3 or Section 4 until the violation is cured.
410410 Section 10. (a) In any civil action or investigation
411411 involving a violation of this act, except as provided in
412412 subsection (b), the Office of the Attorney General shall
413413 receive reasonable attorney fees and costs from the
414414 nonprevailing party.
415415 (b) In any civil litigation initiated by the division
416416 resulting in a judgment or administrative order, the court may
417417 award to the prevailing party reasonable attorney fees and
418418 costs if the court finds that there was a complete absence of
419419 a justiciable issue of either law or fact raised by the losing
420420 party or if the court finds bad faith on the part of the
421421 losing party.
422422 (c) The attorney for the prevailing party shall submit
423423 a sworn affidavit of his or her time spent on the case and his
424424 or her costs incurred.
425425 Section 11. (a) An individual shall have a private
426426 cause of action against a person who violates Section 3 if the
427427 individual is a parent or guardian of a minor and, as a result
428428 of the violation of Section 3, the minor accessed obscene
429429 material or material harmful to minors.
430430 (b) In addition to any other penalties or remedies
431431 provided under law, the individual may recover compensatory
432432 damages, actual costs, court costs, and attorney fees.
433433 (c) Any violation of this act shall also be considered
434434 a violation of the Deceptive Trade Practices Act, Chapter 19,
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464464 Title 8, Code of Alabama 1975.
465465 Section 12. Although this bill would have as its
466466 purpose or effect the requirement of a new or increased
467467 expenditure of local funds, the bill is excluded from further
468468 requirements and application under Section 111.05 of the
469469 Constitution of Alabama of 2022, because the bill defines a
470470 new crime or amends the definition of an existing crime.
471471 Section 13. This act shall become effective on the
472472 first day of the third month following its passage and
473473 approval by the Governor, or its otherwise becoming law.
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