HOUSE BILL 73

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Christine Trujillo

 

 

 

 

 

AN ACT

RELATING TO INDECENT DECEPTIVE TRADE PRACTICES; ENACTING THE HUMAN TRAFFICKING AND CHILD EXPLOITATION ACT; CREATING CONTINUING DUTIES FOR RETAILERS OF INTERNET-ENABLED DEVICES; CREATING A CIVIL ACTION, CONSUMER PROTECTION VIOLATIONS, AN AFFIRMATIVE DEFENSE, UNLAWFUL ACTS, PENALTIES AND EXEMPTIONS; ESTABLISHING THE NEW MEXICO HUMAN TRAFFICKING AND CHILD EXPLOITATION PREVENTION GRANT FUND ADMINISTERED BY THE ATTORNEY GENERAL FOR THE BENEFIT OF GOVERNMENTAL AND, ESPECIALLY, NON-GOVERNMENTAL GROUPS WORKING TO UPHOLD CONTEMPORARY COMMUNITY STANDARDS OF DECENCY OR TO COMBAT SEX-RELATED OFFENSES; IMPOSING AN ADMISSION FEE ON LIVE ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING FOR A CONTINGENT EFFECTIVE DATE THAT DEPENDS ON FOUR OTHER STATES ENACTING SIMILAR LEGISLATION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

         SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Human Trafficking and Child Exploitation Act".

         SECTION 2. [NEW MATERIAL] PURPOSE.--The purpose of the Human Trafficking and Child Exploitation Act is to regulate indecent deceptive trade practices, cause existing laws to catch up to modern technology and deter the erosion of contemporary community standards of decency.

         SECTION 3. [NEW MATERIAL] LEGISLATIVE FINDINGS.--The legislature finds that:

                   A. the United States supreme court in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004), found the legislative branch "may undoubtedly act to encourage the use of filters . . . . It could also take steps to promote their development by industry, and their use by parents", which was the United States supreme court's way of signaling to the legislative branch to pass filter legislation that requires consumers to opt in to having access to obscene materials that are harmful to minors on internet-enabled devices, since filters are the least restrictive means;

                   B. the United States supreme court found in Ginsberg v. New York, 390 U.S. 629 (1968), that a physical display state statute that required physical brick and mortar stores to put physical obscene material behind a physical blinder rack was constitutional under first amendment heightened scrutiny, which means that a digital blinder rack statute that requires digital retailers to put digital obscene material behind a digital blinder rack is also constitutional on the same legal basis;

                   C. because the United States supreme court in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), made it clear that the states have a compelling interest to uphold community standards of decency, a statute requiring a filter deactivation fee regarding websites displaying obscene material and an adult service business admission fee are constitutional for being rationally related to a narrowly tailored compelling state interest;

                   D. the Texas supreme court in Combs v. Texas Entertainment Association, et al., 347 S.W.3d 277 (Sup. Ct. Tex. 2011), relying on federal constitutional law, found that a statute that required a five-dollar ($5.00) admission fee to an adult service business that was to be remitted back to the state to enable the state to uphold community standards of decency was constitutional under first amendment heightened scrutiny, which means that a one-time twenty-dollar ($20.00) filter deactivation fee to enter the digital strip club on internet-enabled devices is constitutional on the same legal basis, if remitted to the state to be used in the same manner;

                   E. human trafficking has substantially moved from the street corner to the smart phone, which means that making websites that facilitate human trafficking and prostitution inaccessible by default on internet-enabled devices will do more to curb the demand for such offenses, more so than any other measure since the inception of the internet;

                   F. live adult entertainment establishments contribute to a culture that tolerates the sexual objectification and exploitation of women and contribute to the need for community-based services to respond to victims of all forms of sexual exploitation, including sexual harassment, trafficking and sexual assault;

                   G. crime statistics show that the presence of live adult entertainment establishments may result in an increase in prohibited secondary sexual activities, such as prostitution and other crimes, in the surrounding community; and

                   H. the legislature is generally opposed to online censorship unless the content is injurious to children or promotes human trafficking; only then does the legislature condone limited censorship.

         SECTION 4. [NEW MATERIAL] DEFINITIONS.--As used in the Human Trafficking and Child Exploitation Act:

                   A. "cellular telephone" means a communication device containing a unique electronic serial number that is programmed into its computer chip by its manufacturer and whose

operation is dependent on the transmission of that electronic serial number along with a mobile identification number, which is assigned by the cellular telephone carrier, in the form of radio signals through cell sites and mobile switching stations;

                   B. "child pornography" has the same meaning as set forth in 18 U.S.C. Section 2256 and describes an offense pursuant to Section 30-6A-3 NMSA 1978;

                   C. "computer" has the same meaning as set forth in 18 U.S.C. Section 1030;

                   D. "consumer" means an individual, business or entity that purchases or leases for personal, family or household purposes, or for any other reason, an internet-enabled device;

                   E. "data communications device" means an electronic device that receives electronic information from one source and transmits or routes it to another, including any such bridge, router, switch or gateway;

                   F. "filter" means a digital blocking capability, hardware or software that restricts or blocks internet access to websites, electronic mail, chat or other internet-based communications based on category, site or content, and the term means a digital blinder rack that can be deactivated by a retailer upon the satisfaction of certain nominal conditions;

                   G. "harmful to minors" has the same meaning as set forth in Subsection F of Section 30-37-1 NMSA 1978;

                   H. "hate speech" means a phrase concerning content that an individual finds offensive based on the individual's personal moral code;

                   I. "human trafficking" has the same meaning as set forth in Section 30-52-1 NMSA 1978;

                   J. "internet" has the same meaning as given in 31 U.S.C. Section 5362;

                   K. "internet-enabled device" means a cellular telephone, computer, data communications device or other product manufactured, distributed or sold in New Mexico that provides internet access or plays a material role in distributing content on the internet;

                   L. "internet service provider" means a person engaged in the business of providing a computer and communications facility through which a consumer may obtain access to the internet. The term does not include a common carrier if it provides only telecommunications service;

                   M. "live adult entertainment establishment" means a business in which, as the major activity, customers congregate primarily for the purpose of viewing or associating with employees who display anatomical areas designed to provide sexual stimulation or sexual gratification, including human genitals, the immediate pubic region or pubic hair, buttocks to the extent of exposing the immediate anal area, female breasts to points below the nipples, male genitals in a state of erection, even if covered with opaque clothing, and all of the above anatomical areas when covered only by transparent or diaphanous clothing;

                   N. "minor" has the same meaning as set forth in Section 30-37-1 NMSA 1978;

                   O. "obscene material" means content:

                               (1) that the average individual applying contemporary community standards would find, when considered or taken as a whole, appeals to prurient interests;

                               (2) depicting or describing sexual conduct in a patently offensive way by audio or visual representations, actual or simulated masturbation, excretory functions or exhibitions of a specified anatomical area of oneself or another, or tactile stimulation of the covered or uncovered genitals of oneself or another;

                               (3) that, when considered or taken as a whole, lacks serious literary, artistic, political or scientific value; and

                               (4) on websites that:

                                         (a) are known to facilitate human trafficking or prostitution; and

                                         (b) display or depict images that are harmful to minors or that constitute sado-masochistic abuse, sexual excitement, sexual conduct or revenge pornography;

                   P. "personal identification information" means any information that identifies a person, including an individual's photograph, social security number, driver identification number, name, email address, address or telephone number;

                   Q. "prostitution" has the same meaning as set forth in Section 30-9-2 NMSA 1978;

                   R. "retailer" means any person who regularly engages in the manufacturing, sale, offer for sale or lease of internet-enabled devices or services in New Mexico that make content accessible on the internet; the term includes internet service providers;

                   S. "revenge pornography" means images that promote the exposure of a person and that is an offense as set forth in Section 30-37A-1 NMSA 1978;

                   T. "sado-masochistic abuse" has the same meaning as set forth in Subsection E of Section 30-37-1 NMSA 1978;

                   U. "sexual conduct" has the same meaning as set forth in Subsection C of Section 30-37-1 NMSA 1978;

                   V. "sexual excitement" has the same meaning as set forth in Subsection D of Section 30-37-1 NMSA 1978; and

                   W. "social media website" means an internet website or application that enables users to communicate with each other by posting information, comments, messages or images and that meets all of the following requirements:

                               (1) is open to the public;

                               (2) has more than seventy-five million subscribers;

                               (3) from its inception, has not been specifically affiliated with any one religion or political party; and

                               (4) provides a means for the website's users to report obscene materials and has in place procedures for evaluating those reports and removing obscene material.

         SECTION 5. [NEW MATERIAL] CONTINUING DUTIES OF RETAILERS OF INTERNET-ENABLED DEVICES--FILTERS.--

                   A. A retailer that manufactures, sells, offers for sale, leases or distributes an internet-enabled device shall ensure that the product is equipped with an active and operating filter prior to sale that blocks by default websites that:

                               (1) are known to facilitate human trafficking or prostitution; and

                               (2) display child pornography, revenge pornography or obscene material harmful to minors.

                   B. A retailer that manufactures, sells, offers for sale, leases or distributes an internet-enabled device shall:

                               (1) make reasonable and ongoing efforts to ensure that the device's filter functions properly;

                               (2) establish a reporting mechanism, such as a website or call center, to allow a consumer to report unblocked websites displaying content described in Paragraphs (1) and (2) of Subsection A of this section or to report blocked websites that are not displaying content described in those paragraphs;

                               (3) report child pornography received through the reporting mechanism to the national center for missing and exploited children's cyber tip line in accordance with Subsection A of 18 U.S.C. Section 2258; and

                               (4) not block access to websites that:

                                         (a) are social media websites that provide a means for the website's users to report obscene materials and have in place procedures for evaluating those reports and removing obscene material;

                                         (b) serve primarily as a search engine; or

                                         (c) display complete movies that meet the qualifications for a "G", "PG", "PG-13" or "R" rating by the classification and ratings administration, as those qualificat