| 1 | 1 | | SENATE BILL NO. 191 A bill to regulate material harmful to minors; to provide for the powers and duties of certain state governmental officers and entities; and to provide remedies. the people of the state of michigan enact: Sec. 1. This act may be cited as the "material harmful to minors regulation act". Sec. 2. As used in this act: (a) "Commercial entity" includes a corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized entity. (b) "Department" means the department of attorney general. (c) "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means. (d) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks. (e) "Material harmful to minors" means all of the following: (i) Material that the average individual, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest. (ii) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors: (A) Pubic hair, anus, vulva, genitals, or nipple of the female breast. (B) Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals. (C) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act. (iii) Material that taken as a whole lacks serious literary, artistic, political, or scientific value for minors. (f) "Minor" means an individual who is less than 18 years of age. (g) "News-gathering organization" means either of the following: (i) 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, who can provide documentation of employment with the newspaper, news publication, or news source. (ii) An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee, who can provide documentation of employment with the radio broadcast station, television broadcast station, cable television operator, or wire service. (h) "Publish" means to communicate or make information available to another individual or entity on a publicly available internet website. (i) "Reasonable age verification methods" includes verifying that an individual seeking to access material harmful to minors is 18 years of age or older by using either of the following methods: (i) Providing a digitized identification card. (ii) Requiring the individual to comply with a commercial age verification system that verifies an individual's age in 1 or both of the following ways: (A) By reviewing a government-issued identification. (B) By using a commercially reasonable method that relies on public or private transactional data to verify the age of the individual. (j) "Substantial portion" means that more than 33.33% of the total material on a website is material harmful to minors. (k) "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, but is not limited to, records from mortgage, education, and employment entities. Sec. 3. (1) A 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 material harmful to minors shall not allow an individual to access the material harmful to minors unless the commercial entity performs reasonable age verification methods to verify that the individual is 18 years of age or older. (2) A commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains less than a substantial portion of material harmful to minors shall do both of the following: (a) Block access to known mature content if reasonable age verification methods indicate that an individual is not 18 years of age or older. (b) Provide a disclaimer to a user or visitor before displaying known mature content. (3) A commercial entity or third party that performs the required age verification under subsection (1) or (2) shall not retain any identifying information of the individual after access has been granted to the material harmful to minors. (4) A commercial entity that violates this act may be liable in a civil action for damages resulting from a minor's accessing the material harmful to minors, including court costs and reasonable attorney fees as ordered by the court. (5) A commercial entity that is found to have knowingly retained identifying information of an individual after access to the material harmful to minors has been granted to the individual may be liable in a civil action for damages resulting from retaining the identifying information of the individual, including court costs and reasonable attorney fees as ordered by the court. Sec. 5. (1) This act does not apply to a bona fide news or public interest broadcast, website video, report, or event and does not affect the rights of a news-gathering organization. (2) An internet service provider, or an internet service provider's affiliates or subsidiaries, search engine, or cloud service provider does not violate this act solely for providing access or connection to or from a website or other information or content on the internet or a facility, system, or network not under that provider's control including transmission, downloading, intermediate storage, access software, or other to the extent that the provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors. Sec. 7. (1) The department has exclusive authority to enforce this act. (2) Before initiating a civil action, the department shall provide an entity alleged with violating this act with 45 days' written notice identifying the specific provisions of this act the department alleges the entity is violating. If within 45 days after receiving the written notice the entity cures the noticed violation and provides the department with an express written statement that the alleged violations have been cured, the department shall not initiate a civil action. (3) If an entity continues to violate this act in breach of an express written statement provided to the department under subsection (2) or fails to provide an express written statement under subsection (2), the department may initiate a civil action seeking damages of not more than $10,000.00 per violation. Damages under this subsection begin accruing after the completion of the 45-day period to cure under subsection (2). |
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| 27 | 27 | | SENATE BILL NO. 191 |
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| 29 | 29 | | |
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| 30 | 30 | | |
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| 31 | 31 | | A bill to regulate material harmful to minors; to provide for the powers and duties of certain state governmental officers and entities; and to provide remedies. |
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| 32 | 32 | | |
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| 33 | 33 | | the people of the state of michigan enact: |
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| 34 | 34 | | |
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| 35 | 35 | | Sec. 1. This act may be cited as the "material harmful to minors regulation act". |
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| 36 | 36 | | |
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| 37 | 37 | | Sec. 2. As used in this act: |
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| 38 | 38 | | |
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| 39 | 39 | | (a) "Commercial entity" includes a corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized entity. |
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| 40 | 40 | | |
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| 41 | 41 | | (b) "Department" means the department of attorney general. |
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| 42 | 42 | | |
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| 43 | 43 | | (c) "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means. |
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| 44 | 44 | | |
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| 45 | 45 | | (d) "Internet" means the international computer network of both federal and nonfederal interoperable packet switched data networks. |
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| 46 | 46 | | |
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| 47 | 47 | | (e) "Material harmful to minors" means all of the following: |
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| 48 | 48 | | |
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| 49 | 49 | | (i) Material that the average individual, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest. |
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| 50 | 50 | | |
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| 51 | 51 | | (ii) Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors: |
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| 52 | 52 | | |
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| 53 | 53 | | (A) Pubic hair, anus, vulva, genitals, or nipple of the female breast. |
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| 54 | 54 | | |
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| 55 | 55 | | (B) Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals. |
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| 56 | 56 | | |
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| 57 | 57 | | (C) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act. |
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| 58 | 58 | | |
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| 59 | 59 | | (iii) Material that taken as a whole lacks serious literary, artistic, political, or scientific value for minors. |
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| 60 | 60 | | |
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| 61 | 61 | | (f) "Minor" means an individual who is less than 18 years of age. |
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| 62 | 62 | | |
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| 63 | 63 | | (g) "News-gathering organization" means either of the following: |
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| 64 | 64 | | |
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| 65 | 65 | | (i) 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, who can provide documentation of employment with the newspaper, news publication, or news source. |
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| 66 | 66 | | |
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| 67 | 67 | | (ii) An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service while operating as an employee, who can provide documentation of employment with the radio broadcast station, television broadcast station, cable television operator, or wire service. |
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| 68 | 68 | | |
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| 69 | 69 | | (h) "Publish" means to communicate or make information available to another individual or entity on a publicly available internet website. |
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| 70 | 70 | | |
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| 71 | 71 | | (i) "Reasonable age verification methods" includes verifying that an individual seeking to access material harmful to minors is 18 years of age or older by using either of the following methods: |
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| 72 | 72 | | |
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| 73 | 73 | | (i) Providing a digitized identification card. |
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| 74 | 74 | | |
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| 75 | 75 | | (ii) Requiring the individual to comply with a commercial age verification system that verifies an individual's age in 1 or both of the following ways: |
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| 76 | 76 | | |
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| 77 | 77 | | (A) By reviewing a government-issued identification. |
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| 78 | 78 | | |
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| 79 | 79 | | (B) By using a commercially reasonable method that relies on public or private transactional data to verify the age of the individual. |
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| 80 | 80 | | |
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| 81 | 81 | | (j) "Substantial portion" means that more than 33.33% of the total material on a website is material harmful to minors. |
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| 82 | 82 | | |
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| 83 | 83 | | (k) "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, but is not limited to, records from mortgage, education, and employment entities. |
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| 84 | 84 | | |
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| 85 | 85 | | Sec. 3. (1) A 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 material harmful to minors shall not allow an individual to access the material harmful to minors unless the commercial entity performs reasonable age verification methods to verify that the individual is 18 years of age or older. |
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| 86 | 86 | | |
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| 87 | 87 | | (2) A commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains less than a substantial portion of material harmful to minors shall do both of the following: |
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| 88 | 88 | | |
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| 89 | 89 | | (a) Block access to known mature content if reasonable age verification methods indicate that an individual is not 18 years of age or older. |
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| 90 | 90 | | |
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| 91 | 91 | | (b) Provide a disclaimer to a user or visitor before displaying known mature content. |
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| 92 | 92 | | |
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| 93 | 93 | | (3) A commercial entity or third party that performs the required age verification under subsection (1) or (2) shall not retain any identifying information of the individual after access has been granted to the material harmful to minors. |
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| 94 | 94 | | |
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| 95 | 95 | | (4) A commercial entity that violates this act may be liable in a civil action for damages resulting from a minor's accessing the material harmful to minors, including court costs and reasonable attorney fees as ordered by the court. |
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| 96 | 96 | | |
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| 97 | 97 | | (5) A commercial entity that is found to have knowingly retained identifying information of an individual after access to the material harmful to minors has been granted to the individual may be liable in a civil action for damages resulting from retaining the identifying information of the individual, including court costs and reasonable attorney fees as ordered by the court. |
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| 98 | 98 | | |
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| 99 | 99 | | Sec. 5. (1) This act does not apply to a bona fide news or public interest broadcast, website video, report, or event and does not affect the rights of a news-gathering organization. |
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| 100 | 100 | | |
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| 101 | 101 | | (2) An internet service provider, or an internet service provider's affiliates or subsidiaries, search engine, or cloud service provider does not violate this act solely for providing access or connection to or from a website or other information or content on the internet or a facility, system, or network not under that provider's control including transmission, downloading, intermediate storage, access software, or other to the extent that the provider is not responsible for the creation of the content of the communication that constitutes material harmful to minors. |
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| 102 | 102 | | |
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| 103 | 103 | | Sec. 7. (1) The department has exclusive authority to enforce this act. |
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| 104 | 104 | | |
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| 105 | 105 | | (2) Before initiating a civil action, the department shall provide an entity alleged with violating this act with 45 days' written notice identifying the specific provisions of this act the department alleges the entity is violating. If within 45 days after receiving the written notice the entity cures the noticed violation and provides the department with an express written statement that the alleged violations have been cured, the department shall not initiate a civil action. |
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| 106 | 106 | | |
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| 107 | 107 | | (3) If an entity continues to violate this act in breach of an express written statement provided to the department under subsection (2) or fails to provide an express written statement under subsection (2), the department may initiate a civil action seeking damages of not more than $10,000.00 per violation. Damages under this subsection begin accruing after the completion of the 45-day period to cure under subsection (2). |
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