The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 1196
INTRODUCER: Senator Ingoglia
SUBJECT: Harm to Minors
DATE: February 5, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Parker Stokes CJ Pre-meeting
2. ACJ
3. FP
I. Summary:
SB 1196 creates s. 501.173, F.S., requiring manufacturers of tablets or smartphones to
manufacture a device that when activated in this state, automatically enables a filter that prevents
the user from accessing or downloading material that is harmful to minors; notifies the user of
the device when the filter blocks the device from downloading an application or accessing an
Internet website; gives a user with a password the opportunity to unblock a filtered application or
website; and reasonably precludes a user other than a user with the password the opportunity to
deactivate, modify, or uninstall the filter.
The bill provides civil and criminal penalties and provides that a manufacturer of a device is
subject to civil and criminal liability if:
The device is activated in this state;
The device does not, upon activation, enable a filter that complies with specified
requirements; and
A minor accesses material that is harmful to minors on the device.
The bill amends s. 787.025, F.S., increasing the criminal penalty, from a first degree
misdemeanor to a third degree felony, for adults who intentionally lure or entice, or who attempt
to lure or entice, children under the age of 12 into a structure, dwelling, or conveyance for other
than a lawful purpose. The bill also increases the criminal penalty from a third degree felony
1
to
a second degree felony
2
for committing a second or subsequent offense. Additionally, the penalty
for this offense is increased from a third degree felony to a second degree felony if the offender
has previous specified convictions.
1
A felony of the third degree is punishable by a term of imprisonment of 5 years, as provided in s. 775.082, s. 775.083, or
s. 775.083, F.S.
2
A second degree felony is punishable by a term of 15 years of imprisonment, as provided in s. 775.082, s. 775.083, or
s. 775.083, F.S.
REVISED: BILL: SB 1196 Page 2
The bill creates s. 827.12, F.S., providing that a person 18 years of age or older may not
knowingly engage in any communication that is part of a pattern of communication or behavior
that is:
Designed to maintain an inappropriate relationship with a minor or another person believed
by the person to be a minor; or
Harmful to minors as defined in s. 847.001, F.S.
3
A person 18 years of age or older may not knowingly use a computer online service, Internet
service, local bulletin board service, or any other means or device capable of electronic data
storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or
entice a minor, or another person believed by the person to be a minor, to share an image or a
recorded image depicting nudity of the minor for the sexual excitement of either party.
A person who violates this section commits the offense of harmful communication with a minor
and commits a third degree felony. If the minor is younger than 12 years of age, the person
commits a second degree felony. A person convicted under this section must register as a sexual
offender.
The bill provides an exception under this section for medical diagnosis, treatment, or educational
conversation by a parent, caregiver, or educator for the purposes of sexual education, and not
intended to elicit sexual excitement.
The bill defines the terms “inappropriate relationship,” “harmful to minors,” “sexual conduct,”
and “sexual excitement.”
The bill amends s. 921.0022, F.S., by ranking the above described offenses:
Section 827.12(3)(a), F.S., Harmful communication with a minor who is 12 years of age or
older, ranking the third degree felony as a level 3 offense in the offense severity ranking
chart.
Section 827.12(3)(b), F.S., Harmful communication with a minor younger than 12 years of
age, ranking the second degree felony as a level 5 offense in the offense severity ranking
chart.
This bill may have a positive indeterminate fiscal impact. See Section V. Fiscal Impact
Statement.
The bill becomes effective October 1, 2024.
3
Section 847.001(7), F.S., provides that “harmful to minors,” means any reproduction, imitation, characterization,
description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual
excitement when it: (a) Predominantly appeals to a prurient, shameful, or morbid interest; (b) Is patently offensive to
prevailing standards in the adult community as a whole with respect to what is suitable material or conduce for minors; and
(c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors. BILL: SB 1196 Page 3
II. Present Situation:
Content Filtering, Safety Measures, and Parental Controls
Content filtering is a process involving the use of software or hardware to screen and/or restrict
access to objectionable email, webpages, executables and other suspicious items. Companies
often use content-based filtering, also known as information filtering, as part of their Internet
firewalls. A common security measure, content filtering helps companies execute corporate
policies on the use of information systems -- for example, the filtering and blocking of employee
access to social media platforms. Additionally, parents often use web filtering to screen and/or
exclude content their children have access to from a home computer. Filtering software can
screen content for anything that is objectionable or criminal, including online porn, hate sites,
illegal content and social media. However, one drawback of content filtering programs is that it
is easy to unintentionally block access to content that should not be blocked.
4
Providing children with information on ways to more safely use social media may decrease the
harm they experience. Having conversations about social media, its benefits, and its risks, may
help promote positive social media usage.
5
Parental controls may also help protect children from
inappropriate content, cyberbullying, and other online safety issues.
6
Examples of parental
controls include blocking websites, filtering content, imposing limits on screen time, allowing
parents to monitor online activity, using location tracking, and disabling Wi-Fi.
7
However, two studies at the University of Central Florida found that parental control apps may
actually be counterproductive, harming the trust between a parent and child and reducing the
child’s ability to respond to online threats. In one of the studies, children believed that the apps
were overly restrictive and prevented them from doing everyday tasks, such as homework
assignments. Additionally, a researcher stated that “parental involvement and direct supervision
were both associated with fewer peer problems and less online victimization for teens, but
neither of these factors correlated with the use of parental control apps.”
8
Protection of Children in Online Spaces Act
Section 501.1735, F.S., provides that any online service, product, game, or feature likely to be
predominantly accessed by children under 18 years of age may not, except under certain
situations:
4
Tech Target Network, Loshin, Peter, What is Content Filtering and how does it work?, available at,
https://www.techtarget.com/searchsecurity/definition/content-filtering (last visited on January 29, 2024).
5
WebMD Editorial Contributors, April 9, 2023, How to Talk to Your Kids About Social Media, available at,
https://www.webmd.com/parenting/how-to-talk-to-kids-about-social-media (last visited on January 29, 2024).
6
Internetmatters.org, Parental Controls, available at, https://www.internetmatters.org/parental-controls/ (last visited on
January 29, 2024).
7
Commonsensemedia.org, Knorr, Caroline, March 9, 2021, Parents’ Ultimate Guide to Parental Controls, available at,
https://www.commonsensemedia.org/articles/parents-ultimate-guide-to-parental-controls (last visited on January 29, 2024).
8
UCF Today, Abney, Barbara and Kotola, Zenaida, April 2, 2018, Apps to Keep Children Safe Online May be
Counterproductive, available at, https://www.ucf.edu/news/apps-keep-children-safe-online-may-counterproductive/ (last
visited on January 29, 2024). BILL: SB 1196 Page 4
Process the personal information of any child if the platform has actual knowledge or
willfully disregards that the processing may result in substantial harm or privacy risk to
children.
Profile a child.
Collect, sell, share, or retain any personal information that is not necessary to provide an
online service, product, or feature with which a child is actively and knowingly engaged.
Use a child’s personal information for any unstated reason.
Collect, sell, or share any precise geolocation of data of children.
Use dark patterns to lead or encourage children to provide personal information beyond what
personal information would otherwise be reasonably expected to be provided for that online
service, product, game or feature; to forego privacy protections; or to take any action that the
online platform has actual knowledge of or willfully disregards that may result in substantial
harm or privacy risk to children.
Use collected information to estimate age or age range for any other purpose or retain that
personal information longer than necessary to estimate age.
Freedom of Speech and the Protection of Minors
Background
Freedom of speech is guaranteed to citizens in the United States Constitution and the State
Constitution.
9
As a foundational principle, this prohibits the government from dictating what
people “see or read or speak or hear.”
10
However, there are limits to the freedom of speech; it is
not absolute. Categories of speech that do not enjoy complete protection include defamation,
incitement, obscenity, and pornography involving real children.
11
Courts have held, as a bedrock principle of the First Amendment, that a government may not
prohibit or suppress the expression of an idea simply because an audience finds the idea
offensive or disagreeable.
12
When evaluating what constitutes the free speech rights of adults, the
U.S. Supreme Court held, “[W]e have made it perfectly clear that ‘[s]exual expression which is
indecent but not obscene is protected by the First Amendment.’”
13
Stated slightly differently, this
means that some forms of pornography are protected under the Constitution, but obscenity is not.
The Miller Test
In 1973, the U.S. Supreme Court developed a three-prong test in Miller v. California,
14
to define
whether speech is obscene. According to the Miller test, speech is determined to be obscene if:
The average person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest;
9
The United States Constitution states, “Congress shall make no law … abridging the freedom of speech.”
U.S. CONST. amend. I. The State Constitution similarly states “No law shall be passed to restrain or abridge the liberty of
speech or of the press.” Fla. Const. art. I, s. 4.
10
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
11
Id.
12
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd, 502 U.S. 105, 118 (1991).
13
Ashcroft, 245, quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
14
Miller v. California, 413 U.S. 15 (1973). BILL: SB 1196 Page 5
The work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
15
The Miller test is incorporated into the definition of what is “harmful to minors” in s. 847.001(6),
F.S., and “obscenity” in s. 847.001(12), F.S.
Further, courts have found that the state has a “‘compelling interest in protecting the physical and
psychological well-being of minors’ which ‘extends to shielding minors from the influence of
literature that is not obscene by adult standards.’ In doing so, however, the means must be
narrowly tailored to achieve that end so as not to unnecessarily deny adults access to material
which is constitutionally protected indecent material. No similar tailoring is required when the
material is obscene material, which is not protected by the First Amendment.”
16
Current Florida law
Transmission of Material Harmful to Minors
Section 847.0138, F.S., provides that:
Any person who knew or believed that he or she was transmitting an image, information, or
data that is harmful to minors, as defined in s. 847.001, F.S., to a specific individual known
by the defendant to be a minor commits a third degree felony.
17
Any person in any jurisdiction other than this state who knew or believed that he or she was
transmitting an image, information, or data that is harmful to minors, as defined in
s. 847.001, F.S., to a specific individual known by the defendant to be a minor commits a
third degree felony.
18
Section 847.001(7), F.S., defines “harmful to minors” as any reproduction, imitation,
characterization, description, exhibition, presentation, or representation, of whatever kind or
form, depicting nudity, sexual conduct, or sexual excitement
19
when it:
Predominantly appeals to a prurient, shameful, or morbid interest;
Is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable material or conduct for minors; and
Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
Prohibited Computer Usage
A person commits a third degree felony
20
if he or she knowingly uses a computer online service,
Internet service, local bulletin board service, or any other device capable of electronic data
storage or transmission to:
15
Id.at 24.
16
Simmons v. State, 944 So. 2d 317 (Fla. 2006). See also Ashcroft v. Free Speech Coal., 535 U.S. 234, 244-45 (2002).
17
Section 847.0138(2), F.S.
18
Section 847.0138(3), F.S.
19
Section 847.001(20), F.S., defines “sexual excitement” as the condition of the human male or female genitals when in a
state of sexual stimulation or arousal.
20
Section 847.0135(3)(b), F.S. BILL: SB 1196 Page 6
Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another
person believed by the person to be a child, to commit any illegal act described in ch. 794,
ch. 800, or ch. 827, F.S., or to otherwise engage in any unlawful sexual conduct with a child
or with another person believed by the person to be a child; or
Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or
custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child
to consent to the participation of such child in any act described in ch. 794, ch. 800, or
ch. 827, F.S., or to otherwise engage in any sexual conduct.
Prohibited Acts in Connection with Obscene Materials
Under s. 847.0133, F.S., a person commits a third-degree felony if he or she knowingly sells,
rents, loans, gives away, distributes, transmits, or shows any obscene material to a minor.
21
“Obscene material” means any obscene book, magazine, periodical, pamphlet, newspaper, comic
book, story paper, written or printed story or article, writing paper, card, picture, drawing,
photograph, motion picture film, figure, image, videotape, videocassette, phonograph record, or
wire or tape or other recording, or any written, printed, or recorded matter of any such character
which may or may not require mechanical or other means to be transmuted into auditory, visual,
or sensory representations of such character, or any article or instrument for obscene use, or
purporting to be for obscene use or purpose.
22
Other States with Device Level Content Filter Mandates
In 2021, Utah passed into law its “Children Device Protection Act” requiring cellphone
manufacturers to turn on every available content filter blocking material that is harmful to
minors.
23
The Utah bill contained the following core requirements:
That all tablets or smartphones sold or activated within the state contain a content filter that
prevents the user of that device from accessing “material that is harmful to minors”;
That these filters are turned on by default upon activating the device but can also be disabled
via a passcode provided to the purchaser; and
That a legal right of action—usually a private right of civil action—is allowed against
manufacturers for each violation of the above.
24
III. Effect of Proposed Changes:
The bill creates s. 501.173, F.S., requiring manufacturers of tablets or smartphones to
manufacture a device that when activated in this state, automatically enables a filter that prevents
the user from accessing or downloading material that is harmful to minors; notifies the user of
the device when the filter blocks the device from downloading an application or accessing an
21
This offense is unranked on the OSRC, and as such, defaults to the statutorily assigned level as described in s. 921.0023,
F.S. Accordingly, because the offense is punishable as a third-degree felony it will be ranked as a level 1 offense on the
OSRC.
22
Section 847.0133(1), F.S.
23
State of Utah, H.B. 72 Device Filter Amendments (2021).
24
Withrow, Josh, Device-Level Content Filter Mandates Defy Common Sense and the Constitution, R Street, June 1, 2023,
available at, https://www.rstreet.org/commentary/device-level-content-filter-mandates-defy-common-sense-and-the-
constitution/ (last visited on January 29, 2024). BILL: SB 1196 Page 7
Internet website; gives a user with a password the opportunity to unblock a filtered application or
website; and reasonably precludes a user other than a user with the password the opportunity to
deactivate, modify, or uninstall the filter.
The bill provides civil and criminal penalties and provides that a manufacturer of a device is
subject to civil and criminal liability if:
The device is activated in this state;
The device does not, upon activation, enable a filter that complies with specified
requirements; and
A minor accesses material that is harmful to minors on the device.
The bill amends s. 787.025, F.S., increasing the criminal penalty, from a first degree
misdemeanor to a third degree felony, for adults who intentionally lure or entice, or who attempt
to lure or entice, children under the age of 12 into a structure, dwelling, or conveyance for other
than a lawful purpose. The bill also increases the criminal penalty from a third degree felony
25
to
a second degree felony
26
for committing a second or subsequent offense. Additionally, the
penalty for this offense is increased from a third degree felony to a second degree felony if the
offender has previous specified convictions.
The bill creates s. 827.12, F.S., providing that a person 18 years of age or older may not
knowingly engage in any communication that is part of a pattern of communication or behavior
that is:
Designed to maintain an inappropriate relationship with a minor or another person believed
by the person to be a minor; or
Harmful to minors as defined in s. 847.001, F.S.
27
A person 18 years of age or older may not knowingly use a computer online service, Internet
service, local bulletin board service, or any other means or device capable of electronic data
storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or
entice a minor, or another person believed by the person to be a minor, to share an image or a
recorded image depicting nudity of the minor for the sexual excitement of either party.
A person who violates this section commits the offense of harmful communication with a minor
and commits a third degree felony. If the minor is younger than 12 years of age, the person
commits a second degree felony. A person convicted under this section must register as a sexual
offender.
25
A felony of the third degree is punishable by a term of imprisonment of 5 years, as provided in s. 775.082, s. 775.083, or
s. 775.083, F.S.
26
A second degree felony is punishable by a term of 15 years of imprisonment, as provided in s. 775.082, s. 775.083, or
s. 775.083, F.S.
27
Section 847.001(7), F.S., provides that “harmful to minors,” means any reproduction, imitation, characterization,
description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual
excitement when it: (a) Predominantly appeals to a prurient, shameful, or morbid interest; (b) Is patently offensive to
prevailing standards in the adult community as a whole with respect to what is suitable material or conduce for minors; and
(c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors. BILL: SB 1196 Page 8
The bill provides an exception under this section for medical diagnosis, treatment, or educational
conversation by a parent, caregiver, or educator for the purposes of sexual education, and not
intended to elicit sexual excitement.
The bill defines the terms “inappropriate relationship,” “harmful to minors,” “sexual conduct,”
and “sexual excitement.”
The bill amends s. 921.0022, F.S., by ranking the above described offenses:
Section 827.12(3)(a), F.S., Harmful communication with a minor who is 12 years of age or
older, ranking the third degree felony as a level 3 offense in the offense severity ranking
chart.
Section 827.12(3)(b), F.S., Harmful communication with a minor younger than 12 years of
age, ranking the second degree felony as a level 5 offense in the offense severity ranking
chart.
The bill becomes effective October 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The First Amendment of the U.S. Constitution prevents the government from creating
laws that restrict the speech of citizens.
28
“Congress shall make no law ... abridging the
freedom of speech.” The rights guaranteed by the First Amendment apply with equal
force to state governments through the due process clause of the Fourteenth
Amendment.
29
The state has a compelling interest in protecting the physical and psychological well-
being of children. Courts have recognized that speech used to further the sexual
28
U.S. Const., amend I.
29
U.S. Const. amend XIV. See also Art. I, Fla. Const. BILL: SB 1196 Page 9
exploitation of children does not enjoy constitutional protection.
30
The state also has a
compelling interest in protecting minors from being seduced to perform sexual actions,
and no legitimate commerce is burdened by penalizing the transmission of harmful sexual
material to known minors in order to seduce them.
31
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Florida Department of Law Enforcement (FDLE) estimates that there will be an
increase in the number of people required to register as sexual offenders in Florida, which
increases the volume of in-person registration at sheriffs’ offices and address
verifications required of law enforcement around Florida and will have an indeterminate
financial impact.
32
There may be indeterminate costs incurred by the FDLE for the sexual offender/predator
registry to review approximately 250 records to determine if persons with out of state
convictions who were previously determined not to qualify would now qualify for sexual
offender registration based on this new provision.
33
The FDLE estimates an anticipated technology fiscal impact, reporting an estimated time
to complete the necessary programmatic changes to fulfill the needs of this legislation is
an estimated 1 week to complete utilizing existing staff resources. The estimated total
cost is $4,000.
34
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
30
Cashatt v. State, 873 So.3d 430, (1st DCA 2004).
31
Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).
32
FDLE, 2024 Legislative Bill Analysis, (January 12, 2024), p. 3 (on file with the Senate Committee on Criminal Justice).
33
Id.
34
Id. at p. 4. BILL: SB 1196 Page 10
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes:
501.173, 787.025, 827.12, 921.0022, 943.0435, 944.606, 944.607, 61.13, 68.07, 92.55, 98.0751,
394.9125, 397.487, 435.07, 775.0862, 900.05, 903.046, 903.133, 907.043, 921.1425, 934.255,
938.10, 943.0584, 943.0595, 947.1405, 948.013, 948.05, 948.06, 948.30, 985.4815, 1012.467,
944.608, 320.02, 322.141, 322.19, 775.13, 775.21, 775.261, 948.063, 775.24, 775.25, 943.0436,
948.31, and 985.04.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.