Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                           SB 544.1
                                               SENATE BILL NO. 544
      INTRODUCED BY W. CURDY, J. FULLER, M. FOX, J. SMALL, C. POPE, W. SALES, P. FLOWERS, B.
                       GILLESPIE, J. ELLSWORTH, K. BOGNER, T. SMITH, T. VERMEIRE
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING INTERNET LAWS RELATED TO MATERIAL
  HARMFUL TO MINORS; PROVIDING FOR LIABILITY FOR THE PUBLISHING OR DISTRIBUTION OF
  MATERIAL HARMFUL TO MINORS ON THE INTERNET; PROVIDING FOR REASONABLE AGE
  VERIFICATION; PROVIDING FOR INDIVIDUAL RIGHTS OF ACTION; PROVIDING FOR ATTORNEY FEES,
  COURT COSTS, AND PUNITIVE DAMAGES; PROVIDING FOR EXCEPTIONS; REQUIRING A REPORT BY
  THE DEPARTMENT OF JUSTICE FOR ENFORCEMENT ACTIVITY; PROVIDING FOR A FEE; PROVIDING
  DEFINITIONS; AND PROVIDING A DELAYED EFFECTIVE DATE.”
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          WHEREAS, pornography is creating a public health crisis and having a corroding influence on minors;
  and
          WHEREAS, due to advances in technology, the universal availability of the internet, and limited age
  verification requirements, minors are exposed to pornography earlier in age; and
          WHEREAS, pornography contributes to the hypersexualization of teens and prepubescent children and
  may lead to low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages,
  and increased desire among adolescents to engage in risky sexual behavior; and
          WHEREAS, pornography may also impact brain development and functioning, contribute to emotional
  and medical illnesses, shape deviant sexual arousal, and lead to difficulty in forming or maintaining positive,
  intimate relationships, as well as promoting problematic or harmful sexual behaviors and addiction; and
          WHEREAS, the provisions of this act are intended to provide a civil remedy for damages against
  commercial entities who distribute material harmful to minors
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.        Publishing and distribution of material harmful to minors -- age
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68th Legislature 2023                                                                                               SB 544.1
  verification -- requirements -- penalties -- exceptions -- reporting -- definitions. (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 the material must be held liable if the entity fails to perform
  reasonable age verification methods to verify the age of individuals attempting to access the material.
           (2)     A commercial entity or third party that performs the required age verification may not retain any
  identifying information of the individual after access has been granted to the material.
           (3)     (a) A commercial entity that is found to have violated this section must be liable to an individual
  for damages resulting from a minor accessing the material, including court costs and reasonable attorney fees
  as ordered by the court.
           (b)     A commercial entity that is found to have knowingly retained identifying information of the
  individual after access has been granted to the individual must be liable to the individual for damages resulting
  from retaining the identifying information, including court costs and reasonable attorney fees as ordered by the
  court.
           (4)     This section may not apply to any bona fide news or public interest broadcast, website video,
  report, or event and may not be construed to affect the rights of any news-gathering organizations.
           (5)     An internet service provider or its affiliates or subsidiaries, a search engine, or a cloud service
  provider may not be held to have violated the provisions of this section 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 forms of access or storage to the extent the provider is not responsible for the creation of the content of
  the communication that constitutes material harmful to minors.
           (6)     The department shall provide an annual report of enforcement actions taken under this section.
  The department shall provide an internet version of the report free of charge to the public and shall charge a fee
  for paper copies that is commensurate with the cost of printing the report.
           (7)     For the purposes of this section:
           (a)     "Commercial entity" includes corporations, limited liability companies, partnerships, limited
  partnerships, sole proprietorships, or other legally recognized entities.
           (b)     "Distribute" means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or
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68th Legislature 2023                                                                                                  SB 544.1
  disseminate by any means.
            (c)     "Internet" means the international computer network of both federal and nonfederal
  interoperable packet switched data networks.
            (d)     "Material harmful to minors" is defined as all of the following:
            (i)     any material that 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 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; or
            (C)     sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory
  functions, exhibitions, or any other sexual act; and
            (iii)   the material taken as a whole lacks serious literary, artistic, political, or scientific value for
  minors.
            (e)     "Minor" means any person under 18 years of age.
            (f)     "News-gathering organization" means any 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 as provided in this
  subsection (7)(f)(i), who can provide documentation of employment with the newspaper, news publication, or
  news source; and
            (ii)    an employee of a radio broadcast station, television broadcast station, cable television
  operator, or wire service, while operating as an employee as provided in this subsection (7)(f)(ii), who can
  provide documentation of employment.
            (g)     "Publish" means to communicate or make information available to another person or entity on a
  publicly available internet website.
            (h)     "Reasonable age verification methods" include verifying that the person seeking to access the
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68th Legislature 2023                                                                                             SB 544.1
  material is 18 years of age or older by using any of the following methods:
          (i)      providing a digitized identification card; or
          (ii)     requiring the person attempting to access the material to comply with a commercial age
  verification system that verifies in one or more of the following ways:
          (A)      government-issued identification; or
          (B)      any commercially reasonable method that relies on public or private transactional data to verify
  the age of the person attempting to access the information is at least 18 years of age or older.
          (i)      "Substantial portion" means more than 33 1/3% of total material on a website, which meets the
  definition of "material harmful to minors" as defined by this section.
          (j)      "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 may include but is not limited to records from mortgage, education, and
  employment entities.
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          NEW SECTION. Section 2.         Codification instruction. [Section 1] is intended to be codified as an
  integral part of Title 30, chapter 14, and the provisions of Title 30, chapter 14, apply to [section 1].
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          NEW SECTION. Section 3.         Effective date. [This act] is effective January 1, 2024.
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