Bill Summary – FastDemocracy

Stricken language would be deleted from and underlined language would be added to present law.
                                           Act 612 of the Regular Session
 State of Arkansas    As Engrossed:       S1/30/23 H2/9/23 H3/2/23 H3/7/23
 94th General Assembly                        A Bill
 Regular Session, 2023                                                               SENATE BILL 66
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 By: Senators Dees, J. Petty, J. Bryant
 By: Representatives McAlindon, Bentley, K. Brown, C. Cooper, Crawford, Haak, Long, Lundstrum,
 McGrew, Rose
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                                    For An Act To Be Entitled
                 AN ACT CONCERNING MATERIAL HARMFUL TO MINORS; TO
                 CREATE THE PROTECTION OF MINORS FROM DISTRIBUTION OF
                 HARMFUL MATERIAL ACT; TO ESTABLISH LIABILITY FOR THE
                 PUBLICATION OR DISTRIBUTION OF MATERIAL HARMFUL TO
                 MINORS ON THE INTERNET; TO IMPOSE DUTIES ON
                 PUBLISHERS AND DISTRIBUTORS OF MATERIAL HARMFUL TO
                 MINORS; TO REQUIRE REASONABLE AGE VERIFICATION; TO
                 PROVIDE FOR INDIVIDUAL RIGHTS OF ACTION; TO ALLOW FOR
                 ATTORNEY'S FEES, COURT COSTS, AND PUNITIVE DAMAGES;
                 AND FOR OTHER PURPOSES.
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                                               Subtitle
                         TO CREATE THE PROTECTION OF MINORS FROM
                         DISTRIBUTION OF HARMFUL MATERIAL ACT; TO
                         ESTABLISH LIABILITY FOR THE PUBLICATION
                         OR DISTRIBUTION OF MATERIAL HARMFUL TO
                         MINORS ON THE INTERNET; AND TO REQUIRE
                         REASONABLE AGE VERIFICATION.
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 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
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         SECTION 1.      Arkansas Code Title 4, Chapter 88, is amended to add an
 additional subchapter to read as follows:
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   Subchapter 11 — Protection of Minors from Distribution of Harmful Material
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     As Engrossed:       S1/30/23 H2/9/23 H3/2/23 H3/7/23                                 SB66
                                                Act
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      4-88-1101.       Title.
      This subchapter shall be known and may be cited as the "Protection of
 Minors from Distribution of Harmful Material Act".
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      4-88-1102.       Legislative findings and intent.
      (a)     The General Assembly finds that:
               (1)    Pornography is creating a public health crisis and is a
 corroding influence on minors;
               (2)    Due to advances in technology, the widespread availability
 of the internet, and limited age verification requirements, minors are
 exposed to pornography at too early of an age;
               (3)    Pornography contributes to the hyper-sexualization of
 minors; and
               (4)    Pornography may:
                       (A)   Lead to:
                              (i)     Low self-esteem;
                              (ii)    Body image disorders;
                              (iii)    An increase in problematic sexual activity at
 younger ages;
                              (iv)    Increased desire among minors to engage in
 risky sexual behavior; and
                              (v)     Difficulty in forming or maintaining positive,
 intimate relationships;
                       (B)   Impact brain development and function;
                       (C)   Contribute to emotional and medical illnesses;
                       (D)   Shape deviant sexual arousal; and
                       (E)   Promote problematic or harmful sexual behaviors and
 addiction.
      (b)     It is the intent of the General Assembly to provide a civil remedy
 for damages against commercial entities that distribute material harmful to
 minors.
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      4-88-1103.       Definitions.
      As used in this subchapter:
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     As Engrossed:    S1/30/23 H2/9/23 H3/2/23 H3/7/23                                  SB66
            (1)(A)     "Commercial entity" means a corporation, limited
 liability company, partnership, limited partnership, sole proprietorship, or
 other legally recognized entity.
                     (B)   "Commercial entity" includes a third party vendor;
            (2)    "Digitized identification card" means a data file available
 on a mobile device that has connectivity to the internet through a state-
 approved application that allows the mobile device to download the data file
 from the Office of Driver Services that contains all of the data elements
 visible on the face and back of a license or identification card and displays
 the current status of the license or identification card, including valid,
 expired, cancelled, suspended, revoked, active, or inactive;
            (3)    "Distribute" means to issue, sell, give, provide, deliver,
 transfer, transmute, circulate, or disseminate by any means;
            (4)    "Internet" means the international computer network of both
 federal and nonfederal interoperable packet switched data networks;
            (5)    "Material harmful to minors" means:
                     (A)   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, prurient interest;
                     (B)   Any of the following material that exploits, is
 devoted to, or principally consists of descriptions of actual, simulated, or
 animated displays or depictions of any of the following, in a manner patently
 offensive with respect to minors:
                            (i)     Nipple of the female breast, pubic hair, anus,
 vulva, or genitals;
                            (ii)    Touching, caressing, or fondling of nipples,
 breasts, buttocks, the anus, or genitals; or
                            (iii)    Sexual intercourse, masturbation, sodomy,
 bestiality, oral copulation, flagellation, excretory functions, exhibitions
 of a sexual act and any other sexual act; and
                     (C)   The material taken as a whole lacks serious literary,
 artistic, political, and scientific value for minors;
            (6)    "Minor" means an individual under eighteen (18) years of
 age;
            (7)    "News-gathering organization" means:
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                     (A)    An employee of a newspaper, news publication, or news
 source, printed or published on an online or mobile platform, of current news
 and public interest, while operating as an employee of a news-gathering
 organization, who can provide documentation of the employment with the
 newspaper, news publication, or news source; or
                     (B)    An employee of a radio broadcast station, television
 broadcast station, cable television operator, or wire service while operating
 as an employee of a news-gathering organization, who can provide
 documentation of the employment;
            (8)    "Publish" means to communicate or make information available
 to another person or entity on a publicly available website;
            (9)    "Reasonable age verification" means to confirm that a person
 seeking to access published material that may have a substantial portion of
 material that is harmful to minors is at least eighteen (18) years of age;
            (10)     "Substantial portion" means more than thirty-three and
 thirty-three hundredths percent (33.33%) of total material on a website which
 meets the definition of material that is harmful to minors as defined by this
 section; and
            (11)(A)        "Transactional data" means a sequence of information
 that documents an exchange, agreement, or transfer between an individual,
 commercial entity, or a third party used for the purpose of satisfying a
 request or event.
                     (B)    "Transactional data" includes without limitation
 records from mortgage, education, and employment entities.
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      4-88-1104.     Reasonable age verification methods.
      (a)   A commercial entity shall use a reasonable age verification method
 before allowing access to a website that contains a substantial portion of
 material that is harmful to minors.
      (b)   Reasonable age verification methods under subsection (a) of this
 section include providing:
            (1)    A digitized     identification card, including a digital copy
 of a driver's license under § 27-16-601 et seq.;
            (2)    Government-issued identification; or
            (3)    Any commercially reasonable age verification method that
 holds an Identity Assurance Level 2 (IAL2).
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      4-88-1105.       Liability for publishers and distributors of material
 harmful to minors.
      (a)(1)     A commercial entity that knowingly and intentionally publishes
 or distributes material that is harmful to minors on the internet from a
 website that contains a substantial portion of material that is harmful to
 minors is liable if the commercial entity fails to perform reasonable age
 verification to verify the age of the individual attempting to access the
 material.
               (2)    If a commercial entity or third party vendor performs a
 reasonable age verification, the commercial entity shall not retain any
 identifying information of the individual after access to the material has
 been granted.
      (b)     A commercial entity that violates this subchapter is liable to an
 individual for damages resulting from a minor accessing the material harmful
 to minors, including court costs and reasonable attorney's fees as ordered by
 the court.
      (c)     A commercial entity that is found to have knowingly retained
 identifying information of an individual after access to the material has
 been granted is liable to the individual for damages resulting from retaining
 the identifying information, including court costs and reasonable attorney's
 fees as ordered by the court.
      (d)     This section does not:
               (1)    Apply to a news or public interest broadcast, website video,
 report, or event;
               (2)    Affect the rights of a news-gathering organization; or
               (3)    Apply to cloud service providers.
      (e)     An internet service provider, or any of its affiliates or
 subsidiaries or search engines shall not violate this subchapter solely by
 providing access or connection to or from a website or other information or
 content on the internet or a facility, system, or network that is not under
 that internet service provider's control, including transmission,
 downloading, intermediate storage, access software, or other service that
 provides access or connectivity, to the extent the internet service provider
 is not responsible for the creation of the content or the communication that
 constitutes material that is harmful to minors.
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     As Engrossed:   S1/30/23 H2/9/23 H3/2/23 H3/7/23                       SB66
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                                     /s/Dees
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                                APPROVED: 4/11/23
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