By: Shaheen, Collier, Schatzline H.B. No. 1181
(Senate Sponsor - Paxton)
(In the Senate - Received from the House May 10, 2023;
May 11, 2023, read first time and referred to Committee on State
Affairs; May 17, 2023, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 11, Nays 0;
May 17, 2023, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 1181 By: Hughes
COMMITTEE VOTE
YeaNayAbsentPNV
HughesX
PaxtonX
BettencourtX
BirdwellX
LaMantiaX
MenéndezX
MiddletonX
ParkerX
PerryX
SchwertnerX
ZaffiriniX
A BILL TO BE ENTITLED
AN ACT
relating to access to sexually explicit material on the Internet or
electronic devices; providing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 121 to read as follows:
CHAPTER 121. ELECTRONIC DEVICE FILTERS
SUBCHAPTER A. ELECTRONIC DEVICE FILTER REQUIREMENTS
Sec. 121.001. DEFINITIONS. In this chapter:
(1) "Activate" means the process of powering on an
electronic device and associating the device with a new user
account.
(2) "Electronic device" means a device with a screen
that is capable of connecting to a cellular network or the Internet.
(3) "Explicit material" means visual material that:
(A) the average person applying contemporary
community standards would find, taking the material as a whole, is
intended to appeal to a prurient interest;
(B) depicts, regardless of whether the depiction
is actual, simulated, or animated, in a patently offensive way:
(i) sexual intercourse, bestiality,
masturbation, sodomy, oral copulation, flagellation, or excretory
functions or actions;
(ii) the striking, manipulating, or
touching of a person's nipple, breast, buttock, anus, or genitals;
(iii) the use of devices, tools,
instruments, structures, or other items in relation to the
performance of any of the acts listed in Subparagraph (i) or (ii);
or
(iv) sadomasochistic abuse or lewd
exhibition of a person's genitals, anus, pubic hair, or nipple; and
(C) taken as a whole, lacks serious literary,
artistic, political, religious, or scientific value.
(4) "Filter" means software installed on an electronic
device that, at the time a user activates the device, meets or
exceeds industry standards and employs the manufacturer's most
advanced, market-ready technology for preventing the device from
accessing, downloading, or displaying explicit material using:
(A) a mobile data network;
(B) an Internet network, including wireless
Internet; or
(C) a software application owned and controlled
by the device's manufacturer.
(5) "Manufacturer" means a person who:
(A) is engaged in the business of manufacturing
electronic devices or holds a patent for an electronic device; and
(B) maintains a registered agent under Section
5.201, Business Organizations Code.
(6) "Minor" means an individual younger than 18 years
of age who:
(A) has never been married; and
(B) has not had the disabilities of minority
removed for general purposes.
(7) "Simulated" has the meaning assigned by Section
21.16, Penal Code.
(8) "Visual material" means any film, photograph,
videotape, negative, or slide or any photographic reproduction that
contains or incorporates any film, photograph, videotape,
negative, or slide.
Sec. 121.002. APPLICABILITY. This chapter does not apply
to a telecommunications provider who activates an electronic device
on behalf of a user.
Sec. 121.003. ELECTRONIC DEVICE FILTER REQUIRED. (a) A
manufacturer shall ensure that an electronic device activated in
this state will, on activation, automatically enable a filter and
notify the user of the device when the filter prevents the device
from accessing, downloading, or displaying explicit material.
(b) An electronic device must:
(1) allow the user of the device or a minor user's
parent or guardian to circumvent the filter required under
Subsection (a) by entering a password or access code; and
(2) reasonably prevent a user of the device from
circumventing, modifying, removing, or uninstalling the filter
without entering a password or access code.
Sec. 121.004. VIOLATION. (a) A manufacturer violates this
chapter if the manufacturer releases into the market an electronic
device that, when activated in this state, does not automatically
enable a filter under Section 121.003 because the device lacks the
necessary software or is defective.
(b) Notwithstanding Subsection (a), a manufacturer does not
violate this chapter if the manufacturer makes a good faith effort
to provide an electronic device that automatically enables a filter
under Section 121.003.
SUBCHAPTER B. ENFORCEMENT
Sec. 121.051. CIVIL PENALTY; INJUNCTION. (a) A
manufacturer who knowingly violates Section 121.004(a) is liable to
this state for a civil penalty in an amount not to exceed the lesser
of:
(1) $10,000 for each violation; or
(2) $50 million.
(b) A manufacturer who negligently violates Section
121.004(a) is liable to this state for a civil penalty in an amount
not to exceed the lesser of:
(1) $1,000 for each violation; or
(2) $5 million.
(c) The attorney general may bring an action in the name of
the state to obtain an injunction preventing further violations of
this chapter by a manufacturer or to recover a civil penalty under
this section. The prevailing party shall recover reasonable and
necessary attorney's fees and costs incurred in an action brought
under this section.
(d) The action may be brought in a district court in:
(1) Travis County; or
(2) the county in which the defendant's principal
place of business is located.
(e) The attorney general shall deposit a civil penalty
collected under this section in the state treasury to the credit of
the general revenue fund.
SECTION 2. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 129B to read as follows:
CHAPTER 129B. LIABILITY FOR ALLOWING MINORS TO ACCESS PORNOGRAPHIC
MATERIAL
Sec. 129B.001. DEFINITIONS. In this chapter:
(1) "Commercial entity" includes a corporation,
limited liability company, partnership, limited partnership, sole
proprietorship, or other legally recognized business entity.
(2) "Distribute" means to issue, sell, give, provide,
deliver, transfer, transmute, circulate, or disseminate by any
means.
(3) "Minor" means an individual younger than 18 years
of age.
(4) "News-gathering organization" includes:
(A) an employee of a newspaper, news publication,
or news source, printed or on an online or mobile platform, of
current news and public interest, who is acting within the course
and scope of that employment and can provide documentation of that
employment with the newspaper, news publication, or news source;
and
(B) an employee of a radio broadcast station,
television broadcast station, cable television operator, or wire
service who is acting within the course and scope of that employment
and can provide documentation of that employment.
(5) "Publish" means to communicate or make information
available to another person or entity on a publicly available
Internet website.
(6) "Sexual material harmful to minors" includes any
material that:
(A) the average person applying contemporary
community standards would find, taking the material as a whole and
with respect to minors, is designed to appeal to or pander to the
prurient interest;
(B) in a manner patently offensive with respect
to minors, exploits, is devoted to, or principally consists of
descriptions of actual, simulated, or animated displays or
depictions of:
(i) a person's pubic hair, anus, or genitals
or the nipple of the female breast;
(ii) touching, caressing, or fondling of
nipples, breasts, buttocks, anuses, or genitals; or
(iii) sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation, excretory
functions, exhibitions, or any other sexual act; and
(C) taken as a whole, lacks serious literary,
artistic, political, or scientific value for minors.
(7) "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. The term includes
records from mortgage, education, and employment entities.
Sec. 129B.002. PUBLICATION OF MATERIAL HARMFUL TO MINORS.
(a) A commercial entity that knowingly and intentionally publishes
or distributes material on an Internet website, including a social
media platform, more than one-third of which is sexual material
harmful to minors, shall use reasonable age verification methods as
described by Section 129B.003 to verify that an individual
attempting to access the material is 18 years of age or older.
(b) A commercial entity that performs the age verification
required by Subsection (a) or a third party that performs the age
verification required by Subsection (a) may not retain any
identifying information of the individual.
Sec. 129B.003. REASONABLE AGE VERIFICATION METHODS. (a)
In this section, "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.
(b) A commercial entity that knowingly and intentionally
publishes or distributes material on an Internet website or a third
party that performs age verification under this chapter shall
require an individual to:
(1) provide digital identification; or
(2) comply with a commercial age verification system
that verifies age using:
(A) government-issued identification; or
(B) a commercially reasonable method that relies
on public or private transactional data to verify the age of an
individual.
Sec. 129B.004. APPLICABILITY OF CHAPTER. (a) This chapter
does not apply to a bona fide news or public interest broadcast,
website video, report, or event and may not be construed to affect
the rights of a news-gathering organization.
(b) An Internet service provider, or its affiliates or
subsidiaries, a search engine, or a cloud service provider may not
be held to have violated this chapter solely for providing access or
connection to or from a website or other information or content on
the Internet or on a facility, system, or network not under that
provider's control, 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.
Sec. 129B.005. CIVIL PENALTY; INJUNCTION. (a) If the
attorney general believes that an entity is knowingly violating or
has knowingly violated this chapter and the action is in the public
interest, the attorney general may bring an action in a Travis
County district court or the district court in the county in which
the principal place of business of the entity is located in this
state to enjoin the violation, recover a civil penalty described by
Subsection (b), and obtain other relief the court considers
appropriate.
(b) A civil penalty imposed under this section may be in an
amount equal to not more than the total, if applicable, of:
(1) $10,000 per day that the entity operates an
Internet website in violation of the age verification requirements
of this chapter;
(2) $10,000 per instance when the entity retains
identifying information in violation of Section 129B.002(b); and
(3) if, because of the entity's violation of the age
verification requirements of this chapter, one or more minors
accesses sexual material harmful to minors, an additional amount of
not more than $250,000.
(c) The amount of a civil penalty under this section shall
be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the history of previous violations;
(3) the amount necessary to deter a future violation;
(4) the economic effect of a penalty on the entity on
whom the penalty will be imposed;
(5) the entity's knowledge that the act constituted a
violation of this chapter; and
(6) any other matter that justice may require.
SECTION 3. Not later than January 1, 2024, each
manufacturer shall implement a software update to automatically
enable an electronic device filter on an electronic device
activated in this state as required by Chapter 121, Business &
Commerce Code, as added by this Act.
SECTION 4. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2023.
(b) Chapter 121, Business & Commerce Code, as added by this
Act, takes effect January 1, 2024.
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