Senate Bill 1284c1

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    Florida Senate - 2000      CS for SB's 1284, 1476, 1528 & 1616

    By the Committee on Criminal Justice and Senators Geller,
    Latvala and Saunders




    307-1856B-00

  1                      A bill to be entitled

  2         An act relating to improper activity over the

  3         Internet; requiring that the Department of Law

  4         Enforcement increase public awareness

  5         concerning Internet safety; requiring the

  6         department to develop guidelines for using the

  7         Internet; requiring the development of a

  8         mechanism to report crimes through an Internet

  9         site; amending s. 501.203, F.S.; including

10         business or commercial entities within the

11         definition of the term "consumer" for purposes

12         of ch. 501, F.S.; amending s. 501.207, F.S.;

13         authorizing an action on behalf of a

14         governmental entity for damages caused by a

15         violation of part II of ch. 501, F.S.; amending

16         s. 501.2075, F.S.; providing for waiver of

17         civil penalties if restitution is made for

18         actual damages to a governmental entity;

19         repealing s. 501.2091, F.S., relating to an

20         authorization for a stay of proceedings pending

21         trial by a party to an action under part II of

22         ch. 501, F.S.; amending s. 501.211, F.S.;

23         providing for the recovery of actual damages on

24         the part of a person who suffers a loss as a

25         result of a violation of part II of ch. 501,

26         F.S.; amending s. 501.212, F.S.; deleting an

27         exemption from regulation under part II of ch.

28         50l, F.S., for persons regulated under laws

29         administered by other agencies; amending s.

30         847.001, F.S.; defining the term "child

31         pornography" for purposes of ch. 847, F.S.;

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  1         clarifying the definition of the term "sexual

  2         conduct"; creating s. 847.0137, F.S.;

  3         prohibiting transmissions over the Internet of

  4         pornography in specified circumstances;

  5         providing penalties; creating s. 847.0139,

  6         F.S.; providing immunity from civil liability

  7         for reporting child pornography; providing an

  8         effective date.

  9

10         WHEREAS, the Florida Information Service Technology

11  Development Task Force has determined and the Legislature

12  finds that, although the Internet offers enormous positive

13  opportunities for the citizens of this state, it also offers

14  many opportunities for criminal activity and victimization,

15  and

16         WHEREAS, computer and Internet-related crime continues

17  to escalate rapidly throughout our state, the nation, and the

18  world, and

19         WHEREAS, although many businesses and residents have

20  become aware of the potential dangers and are cautious in

21  their use of the Internet, others, perhaps even a majority of

22  Internet users, are unaware of the dangers of on-line crime or

23  are unaware of what they can do to prevent their becoming

24  victims of on-line crime, and

25         WHEREAS, the Legislature finds that the state should

26  improve public awareness on how to safely use the Internet,

27  and

28         WHEREAS, the task force has also recommended and the

29  Legislature finds that it is important to ensure that the

30  statutory protections provided for businesses and the public

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  1  against fraud, child abuse, and crimes continue into the new

  2  world of electronic commerce over the Internet, and

  3         WHEREAS, it is of paramount importance that the courts

  4  of this state maintain jurisdiction over perpetrators of

  5  Internet crime in order to protect businesses and members of

  6  the public, and

  7         WHEREAS, sellers of goods and services to businesses

  8  and individuals in this state should be regulated in a uniform

  9  manner, regardless of the method used to contact or deliver

10  goods or services to that business or individual, and

11         WHEREAS, a person's right to equal protection under the

12  laws of this state should not be diminished because the manner

13  of sales transaction has changed as a result of technological

14  advances, and

15         WHEREAS, The Florida Information Service Technology

16  Development Task Force, in finding that the Internet offers

17  many opportunities for criminal activity and victimization,

18  specifically addressed a subset of that criminal activity

19  relating to the transmission, including Internet transmission,

20  of adult and child pornography, and

21         WHEREAS, the task force, while it recognizes that such

22  transmission is a complicated matter involving primarily First

23  Amendment issues regarding adult pornography and

24  jurisdictional issues regarding child pornography,

25  nevertheless agreed with the statement that internet

26  transmission of child pornography constitutes a crime and that

27  Florida has jurisdiction over any person inside or outside of

28  this state who has engaged in such transmission or knew or

29  should have known that he or she was transmitting pornography

30  to a minor in this state, and

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  1         WHEREAS, the task force also agreed with the statement

  2  that any person in this state who transmits child pornography

  3  to anyone inside or outside of this state commits a crime and

  4  that Florida has jurisdiction over such person, and

  5         WHEREAS, the task force also agreed with the statement

  6  that any person outside this state who transmits child

  7  pornography to any person inside this state or who knows or

  8  should know that he or she is doing so commits a crime and

  9  that Florida has jurisdiction over such person, and

10         WHEREAS, the task force, while recognizing that such

11  transmission is a difficult issue to resolve, as many

12  considerations are involved, primarily First Amendment issues

13  regarding adult pornography and jurisdictional issues

14  regarding child pornography, nevertheless agreed with the

15  statement that a crime is committed, and Florida has

16  jurisdiction over any person in or outside of this state who

17  knew or should have known that he or she was transmitting any

18  type of pornography to a minor in this state, and

19         WHEREAS, the task force also agreed with the statement

20  that a crime is committed, and Florida has jurisdiction over

21  any person in this state who transmits child pornography to

22  anyone in or outside of this state, and

23         WHEREAS, the task force also agreed with the statement

24  that a crime is committed, and Florida has jurisdiction over

25  any person outside this state who knew or should have known

26  that he or she was transmitting child pornography to anyone in

27  this state, and

28         WHEREAS, the Legislature also agrees with these

29  statements and finds that these statements should extend to

30  instances in which a person transmits child pornography to

31  someone whom he believes to be a minor but who is actually a

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  1  law enforcement officer engaged in an investigation or

  2  operation in accordance with the laws of this state, which is

  3  already statutorily authorized in relation to computer

  4  solicitation offenses against minors, and

  5         WHEREAS, the Legislature finds that the First Amendment

  6  should not be violated by transmission by any means of

  7  pornography of any kind to a minor and transmission of child

  8  pornography to any person, and

  9         WHEREAS, the Legislature finds that the prohibition of

10  the acts or conduct reflected by the various statements agreed

11  upon by the task force and the Legislature can be accomplished

12  by amending the laws of this state, and

13         WHEREAS, the Legislature finds that the laws of this

14  state can be amended to address jurisdictional concerns

15  regarding child pornography, as those concerns have already

16  been addressed by the Legislature regarding computer

17  solicitation offenses against minors, and

18         WHEREAS, the task force also recommended that

19  legislation be enacted which would not require anyone to

20  report pornography, including child pornography, but which

21  would grant civil immunity from lawsuits to any person who

22  reports to appropriate law enforcement agents what the person

23  reasonably believes to be child pornography, and

24         WHEREAS, the Legislature finds this recommendation may

25  lead to the apprehension of persons conveying by any means

26  child pornography but protects persons from possible arrest

27  based on unsubstantiated or false accusations or statements or

28  the submission of falsified evidence by the person reporting

29  the presence of child pornography, and

30         WHEREAS, the Legislature finds that the laws of this

31  state can be amended to grant civil immunity to any persons

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    Florida Senate - 2000      CS for SB's 1284, 1476, 1528 & 1616
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  1  who report what they reasonably believe to be child

  2  pornography to appropriate law enforcement agents, including

  3  immunity from civil liability for a person who furnishes a

  4  copy of a photograph or other evidence to law enforcement

  5  agents of what the person reasonably believes to be child

  6  pornography, NOW, THEREFORE,

  7

  8  Be It Enacted by the Legislature of the State of Florida:

  9

10         Section 1.  Public awareness campaign on Internet

11  safety.--

12         (1)  The Computer Crime Center within the Department of

13  Law Enforcement shall coordinate the development of a

14  comprehensive public awareness campaign on Internet safety.

15  This effort should include a partnership with the Attorney

16  General and the Department of Education, as well as other

17  agencies and organizations as necessary. At a minimum, the

18  campaign must include the development of guidelines for the

19  safe and secure use of the Internet, including the best ways

20  to prevent users from becoming victims of Internet crime.

21  These should also include detailed guidelines for parents to

22  consider for protecting their children from on-line encounters

23  with molesters, pedophiles, and other criminal elements.

24         (2)  In addition, the public awareness campaign must

25  include the development of a mechanism to report Internet

26  crimes through the public Internet site of the Department of

27  Law Enforcement. Because of the need to establish a simple

28  method for reporting Internet crimes to law enforcement

29  agencies, the Department of Law Enforcement shall work in

30  cooperation with local law enforcement agencies in

31  investigating and prosecuting Internet crimes.

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    Florida Senate - 2000      CS for SB's 1284, 1476, 1528 & 1616
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  1         Section 2.  Subsection (7) of section 501.203, Florida

  2  Statutes, is amended to read:

  3         501.203  Definitions.--As used in this chapter, unless

  4  the context otherwise requires, the term:

  5         (7)  "Consumer" means an individual; child, by and

  6  through its parent or legal guardian; business; firm;

  7  association; joint venture; partnership; estate; trust;

  8  business trust; syndicate; fiduciary; corporation; any

  9  commercial entity, however denominated; or any other group or

10  combination.

11         Section 3.  Subsections (1), (3), and (6) of section

12  501.207, Florida Statutes, are amended to read:

13         501.207  Remedies of enforcing authority.--

14         (1)  The enforcing authority may bring:

15         (a)  An action to obtain a declaratory judgment that an

16  act or practice violates this part.

17         (b)  An action to enjoin any person who has violated,

18  is violating, or is otherwise likely to violate, this part.

19         (c)  An action on behalf of one or more consumers or

20  governmental entities for the actual damages caused by an act

21  or practice in violation of this part.  However, no damages

22  are not shall be recoverable under this section against a

23  retailer who has in good faith engaged in the dissemination of

24  claims of a manufacturer or wholesaler without actual

25  knowledge that it violated this part.

26         (3)  Upon motion of the enforcing authority or any

27  interested party in any action brought under subsection (1),

28  the court may make appropriate orders, including, but not

29  limited to, appointment of a master or receiver or

30  sequestration or freezing of assets, to reimburse consumers or

31  governmental entities found to have been damaged; to carry out

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    Florida Senate - 2000      CS for SB's 1284, 1476, 1528 & 1616
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  1  a transaction in accordance with the consumers' reasonable

  2  expectations of consumers or governmental entities; to strike

  3  or limit the application of clauses of contracts to avoid an

  4  unconscionable result; to order any defendant to divest

  5  herself or himself of any interest in any enterprise,

  6  including real estate; to impose reasonable restrictions upon

  7  the future activities of any defendant to impede her or him

  8  from engaging in or establishing the same type of endeavor; to

  9  order the dissolution or reorganization of any enterprise; or

10  to grant other appropriate relief.  The court may assess the

11  expenses of a master or receiver against a person who has

12  violated, is violating, or is otherwise likely to violate this

13  part.  Any injunctive order, whether temporary or permanent,

14  issued by the court shall be effective throughout the state

15  unless otherwise provided in the order.

16         (6)  The enforcing authority may terminate an

17  investigation or an action upon acceptance of a person's

18  written assurance of voluntary compliance with this part.

19  Acceptance of an assurance may be conditioned on a commitment

20  to reimburse consumers or governmental entities, make

21  contributions, pay civil penalties, pay attorney's fees and

22  costs, or take other appropriate corrective action.  An

23  assurance is not evidence of a prior violation of this part.

24  However, unless an assurance has been rescinded by agreement

25  of the parties or voided by a court for good cause, subsequent

26  failure to comply with the terms of an assurance is prima

27  facie evidence of a violation of this part.  No Such assurance

28  is not shall act as a limitation upon any action or remedy

29  available to a person aggrieved by a violation of this part.

30         Section 4.  Section 501.2075, Florida Statutes, is

31  amended to read:

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  1         501.2075  Civil penalty.--Except as provided in s.

  2  501.2077, any person, firm, corporation, association, or

  3  entity, or any agent or employee of the foregoing, who is

  4  willfully using, or has willfully used, a method, act, or

  5  practice declared unlawful under s. 501.204, or who is

  6  willfully violating any of the rules of the department adopted

  7  promulgated under this part, is liable for a civil penalty of

  8  not more than $10,000 for each such violation.  Willful

  9  violations occur when the person knew or should have known

10  that his or her conduct was unfair or deceptive or prohibited

11  by rule.  This civil penalty may be recovered in any action

12  brought under this part by the enforcing authority; or the

13  enforcing authority may terminate any investigation or action

14  upon agreement by the person, firm, corporation, association,

15  or entity, or the agent or employee of the foregoing, to pay a

16  stipulated civil penalty.  The department or the court may

17  waive any such civil penalty if the person, firm, corporation,

18  association, or entity, or the agent or employee of the

19  foregoing, has previously made full restitution or

20  reimbursement or has paid actual damages to the consumers or

21  governmental entities who have been injured by the unlawful

22  act or practice or rule violation.  If civil penalties are

23  assessed in any litigation, the enforcing authority is

24  entitled to reasonable attorney's fees and costs.  A civil

25  penalty so collected shall accrue to the state and shall be

26  deposited as received into the General Revenue Fund

27  unallocated.

28         Section 5.  Section 501.2091, Florida Statutes, is

29  repealed.

30         Section 6.  Subsection (2) of section 501.211, Florida

31  Statutes, is amended to read:

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  1         501.211  Other individual remedies.--

  2         (2)  In any individual action brought by a person

  3  consumer who has suffered a loss as a result of a violation of

  4  this part, such person consumer may recover actual damages,

  5  plus attorney's fees and court costs as provided in s.

  6  501.2105.; However, no damages, fees, or costs are not shall

  7  be recoverable under this section against a retailer who has,

  8  in good faith, engaged in the dissemination of claims of a

  9  manufacturer or wholesaler without actual knowledge that it

10  violated this part.

11         Section 7.  Subsection (4) of section 501.212, Florida

12  Statutes, is amended to read:

13         501.212  Application.--This part does not apply to:

14         (4)  Any person or activity regulated under laws

15  administered by the Department of Insurance or the Florida

16  Public Service Commission or banks and savings and loan

17  associations regulated by the Department of Banking and

18  Finance or banks or savings and loan associations regulated by

19  federal agencies.

20         Section 8.  Section 847.001, Florida Statutes, is

21  amended to read:

22         847.001  Definitions.--When used in this chapter:

23         (1)  "Child pornography" means any image depicting, or

24  intending to depict, a minor engaged in sexual conduct.

25         (2)(1)  "Computer" means an electronic, magnetic,

26  optical, electrochemical, or other high-speed data processing

27  device performing logical, arithmetic, or storage functions

28  and includes any data storage facility or communications

29  facility directly related to or operating in conjunction with

30  such device. The term also includes: any on-line service,

31  Internet service, or local bulletin board; any electronic

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  1  storage device, including a floppy disk or other magnetic

  2  storage device; or any compact disc that has read-only memory

  3  and the capacity to store audio, video, or written materials.

  4         (3)(2)  "Deviate sexual intercourse" means sexual

  5  conduct between persons not married to each other consisting

  6  of contact between the penis and the anus, the mouth and the

  7  penis, or the mouth and the vulva.

  8         (4)(3)  "Harmful to minors" means that quality of any

  9  description, exhibition, presentation, or representation, in

10  whatever form, of nudity, sexual conduct, or sexual excitement

11  when it:

12         (a)  Predominantly appeals to the prurient, shameful,

13  or morbid interest of minors;

14         (b)  Is patently offensive to prevailing standards in

15  the adult community as a whole with respect to what is

16  suitable material for minors; and

17         (c)  Taken as a whole, is without serious literary,

18  artistic, political, or scientific value for minors.

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20  A mother's breastfeeding of her baby is not under any

21  circumstance "harmful to minors."

22         (5)(4)  "Minor" means any person under the age of 18

23  years.

24         (6)(5)  "Nudity" means the showing of the human male or

25  female genitals, pubic area, or buttocks with less than a

26  fully opaque covering; or the showing of the female breast

27  with less than a fully opaque covering of any portion thereof

28  below the top of the nipple; or the depiction of covered male

29  genitals in a discernibly turgid state.  A mother's

30  breastfeeding of her baby does not under any circumstance

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  1  constitute "nudity," irrespective of whether or not the nipple

  2  is covered during or incidental to feeding.

  3         (7)(6)  "Person" includes individuals, firms,

  4  associations, corporations, and all other groups and

  5  combinations.

  6         (8)(7)  "Obscene" means the status of material which:

  7         (a)  The average person, applying contemporary

  8  community standards, would find, taken as a whole, appeals to

  9  the prurient interest;

10         (b)  Depicts or describes, in a patently offensive way,

11  sexual conduct as specifically defined herein; and

12         (c)  Taken as a whole, lacks serious literary,

13  artistic, political, or scientific value.

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15  A mother's breastfeeding of her baby is not under any

16  circumstance "obscene."

17         (9)(8)  "Sadomasochistic abuse" means flagellation or

18  torture by or upon a person or animal, or the condition of

19  being fettered, bound, or otherwise physically restrained, for

20  the purpose of deriving sexual satisfaction, or satisfaction

21  brought about as a result of sadistic violence, from

22  inflicting harm on another or receiving such harm oneself.

23         (10)(9)  "Sexual battery" means oral, anal, or vaginal

24  penetration by, or union with, the sexual organ of another or

25  the anal or vaginal penetration of another by any other

26  object; however, "sexual battery" does not include an act done

27  for a bona fide medical purpose.

28         (11)(10)  "Sexual bestiality" means any sexual act

29  between a person and an animal involving the sex organ of the

30  one and the mouth, anus, or vagina of the other.

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  1         (12)(11)  "Sexual conduct" means actual or simulated

  2  sexual intercourse, deviate sexual intercourse, sexual

  3  bestiality, masturbation, or sadomasochistic abuse; actual

  4  lewd exhibition of the genitals; actual physical contact with

  5  a person's clothed or unclothed genitals, pubic area,

  6  buttocks, or, if such person is a female, breast with the

  7  intent to arouse or gratify the sexual desire of either party;

  8  or any act or conduct which constitutes sexual battery or

  9  simulates that sexual battery is being or will be committed.

10  A mother's breastfeeding of her baby does not under any

11  circumstance constitute "sexual conduct."

12         (13)(12)  "Sexual excitement" means the condition of

13  the human male or female genitals when in a state of sexual

14  stimulation or arousal.

15         (14)(13)  "Simulated" means the explicit depiction of

16  conduct described in subsection (12) (11) which creates the

17  appearance of such conduct and which exhibits any uncovered

18  portion of the breasts, genitals, or buttocks.

19         Section 9.  Section 847.0137, Florida Statutes, is

20  created to read:

21         847.0137  Transmission of pornography by means of the

22  Internet prohibited; penalties.--

23         (1)  For purposes of this section, the term "minor"

24  means any person less than 18 years of age.

25         (2)  Notwithstanding ss. 847.012 and 847.0133, any

26  person in this state who:

27         (a)  Transmits, by means of the Internet, child

28  pornography, as defined in s. 847.001, to another person in

29  this state or in another jurisdiction; or

30         (b)  Under the circumstances, knew or should have known

31  that he or she was transmitting, by means of the Internet, an

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  1  image harmful to minors, as defined in s. 847.001, to a minor,

  2  or a person believed to be a minor, in this state

  3

  4  commits a felony of the third degree, punishable as provided

  5  in s. 775.082, s. 775.083, or s. 775.084.

  6         (3)  Notwithstanding ss. 847.012 and 847.0133, any

  7  person in any jurisdiction other than this state who:

  8         (a)  Under the circumstances, knew or should have known

  9  that he or she was transmitting, by means of the Internet,

10  child pornography, as defined in s. 847.001, to any person in

11  this state; or

12         (b)  Under the circumstances, knew or should have known

13  that he or she was transmitting, by means of the Internet, an

14  image harmful to minors, as defined in s. 847.001, to a minor,

15  or a person believed to be a minor, in this state

16

17  commits a felony of the third degree, punishable as provided

18  in s. 775.082, s. 775.083, or s. 775.084.

19         (4)  This section shall not be construed to prohibit

20  prosecution of a person in this state or another jurisdiction

21  for a violation of any law of this state, including a law

22  providing for greater penalties than prescribed in this

23  section, for the transmission, by means of the Internet, of an

24  image harmful to minors, or child pornography, as defined in

25  s. 847.001, to any person in this state.

26         (5)  A person is subject to prosecution in this state

27  pursuant to chapter 910 for any act or conduct proscribed by

28  this section, including a person in a jurisdiction other than

29  this state, if the act or conduct violates paragraph (3)(a) or

30  paragraph (3)(b).

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  1         Section 10.  Section 847.0139, Florida Statutes, is

  2  created to read:

  3         847.0139  Immunity from civil liability for reporting

  4  child pornography.--Any person who reports to a law

  5  enforcement officer what the person reasonably believes to be

  6  child pornography as defined in s. 847.001(1) may not be held

  7  civilly liable for reporting such information. For purposes of

  8  this section, reporting child pornography to a law enforcement

  9  officer may include furnishing the officer with a copy of a

10  photograph or other evidence of what the person reasonably

11  believes to be child pornography.

12         Section 11.  This act shall take effect July 1, 2000.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2              Senate Bill's 1284, 1476, 1528 & 1616

  3

  4  -     Requires that the Computer Crime Center within the
          Florida Department of Law Enforcement (FDLE) coordinate
  5        the development of a comprehensive public awareness
          campaign on Internet safety.
  6
    -     Mandates, at a minimum, that the campaign include the
  7        development of guidelines for the safe and secure use of
          the Internet, including the best means to prevent users
  8        from becoming the victims of on-line crime.

  9  -     Requires that the campaign include the development of a
          mechanism to report Internet crimes through FDLE's
10        public Internet site, and requires FDLE to work in
          cooperation with local law enforcement agencies in
11        investigating and prosecuting Internet crimes.

12  -     Clarifies the definition of consumer in the Florida
          Deceptive and Unfair Trade Practices Act includes
13        businesses and that all types of businesses may seek
          their own relief under this act.
14
    -     Ensures that governmental entities are protected by the
15        Florida Deceptive and Unfair Trade Practices Act.

16  -     Repeals s. 501.211, F.S., a venue section in the Florida
          Deceptive and Unfair Trade Practices Act.
17
    -     Clarifies that the Florida Deceptive and Unfair Trade
18        Practices Act applies to businesses regulated by the
          Public Service Commission.
19
    -     Defines "child pornography" as "any image depicting, or
20        intending to depict, a minor engaged in sexual conduct."

21  -     Amends the definition of "sexual conduct" in s. 847.001,
          F.S.
22
    -     Prohibits certain Internet transmissions of material
23        harmful to minors to a minor in this state, or a person
          believed to be a minor in this state.
24
    -     Prohibits Internet transmissions of child pornography
25        into or out of this state.

26  -     Defines "minor" for the purpose of the new offenses.

27  -     Provides that the new section creating these new
          offenses shall not be construed to prohibit prosecution
28        of a person in this state or any other jurisdiction for
          a violation of any law of this state, including a law
29        providing for greater penalties than prescribed in this
          new section for the transmission, by means of the
30        Internet, of an image harmful to minors or child
          pornography.
31
    -     Provides that a person is subject to prosecution in this
                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000      CS for SB's 1284, 1476, 1528 & 1616
    307-1856B-00




  1        state, pursuant to Chapter 910, F.S., for any act
          proscribed by this new section, including acts in
  2        violation of this new section committed by a person in
          another jurisdiction.
  3
    -     Provides that any person who reports to law enforcement
  4        what that person reasonably believes to be child
          pornography is immune from civil liability.
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