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