Senate Bill 1284e2

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  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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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         clarifying the definition of the term "sexual

  2         conduct"; defining the term "transmit";

  3         creating s. 847.0137, F.S.; prohibiting

  4         transmissions over the Internet of pornography

  5         in specified circumstances; providing

  6         penalties; creating s. 847.0139, F.S.;

  7         providing immunity from civil liability for

  8         reporting child pornography; providing an

  9         effective date.

10

11         WHEREAS, the Florida Information Service Technology

12  Development Task Force has determined and the Legislature

13  finds that, although the Internet offers enormous positive

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

15  many opportunities for criminal activity and victimization,

16  and

17         WHEREAS, computer and Internet-related crime continues

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

19  world, and

20         WHEREAS, although many businesses and residents have

21  become aware of the potential dangers and are cautious in

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

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

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

25  victims of on-line crime, and

26         WHEREAS, the Legislature finds that the state should

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

28  and

29         WHEREAS, the task force has also recommended and the

30  Legislature finds that it is important to ensure that the

31  statutory protections provided for businesses and the public


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  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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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  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 Legislature also agrees with these

11  statements and finds that these statements should extend to

12  instances in which a person transmits child pornography to

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

14  law enforcement officer engaged in an investigation or

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

16  already statutorily authorized in relation to computer

17  solicitation offenses against minors, and

18         WHEREAS, the Legislature finds that the First Amendment

19  should not be violated by transmission by any means of

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

21  pornography to any person, and

22         WHEREAS, the Legislature finds that the prohibition of

23  the acts or conduct reflected by the various statements agreed

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

25  by amending the laws of this state, and

26         WHEREAS, the Legislature finds that the laws of this

27  state can be amended to address jurisdictional concerns

28  regarding child pornography, as those concerns have already

29  been addressed by the Legislature regarding computer

30  solicitation offenses against minors, and

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         WHEREAS, the task force also recommended that

  2  legislation be enacted which would not require anyone to

  3  report pornography, including child pornography, but which

  4  would grant civil immunity from lawsuits to any person who

  5  reports to appropriate law enforcement agents what the person

  6  reasonably believes to be child pornography, and

  7         WHEREAS, the Legislature finds this recommendation may

  8  lead to the apprehension of persons conveying by any means

  9  child pornography but protects persons from possible arrest

10  based on unsubstantiated or false accusations or statements or

11  the submission of falsified evidence by the person reporting

12  the presence of child pornography, and

13         WHEREAS, the Legislature finds that the laws of this

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

15  who report what they reasonably believe to be child

16  pornography to appropriate law enforcement agents, including

17  immunity from civil liability for a person who furnishes a

18  copy of a photograph or other evidence to law enforcement

19  agents of what the person reasonably believes to be child

20  pornography, NOW, THEREFORE,

21

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

23

24         Section 1.  Public awareness campaign on Internet

25  safety.--

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

27  Law Enforcement shall coordinate the development of a

28  comprehensive public awareness campaign on Internet safety.

29  This effort should include a partnership with the Attorney

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

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


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1  campaign must include the development of guidelines for the

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

  3  to prevent users from becoming victims of Internet crime.

  4  These should also include detailed guidelines for parents to

  5  consider for protecting their children from on-line encounters

  6  with molesters, pedophiles, and other criminal elements.

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

  8  include the development of a mechanism to report Internet

  9  crimes through the public Internet site of the Department of

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

11  method for reporting Internet crimes to law enforcement

12  agencies, the Department of Law Enforcement shall work in

13  cooperation with local law enforcement agencies in

14  investigating and prosecuting Internet crimes.

15         Section 2.  Subsection (7) of section 501.203, Florida

16  Statutes, is amended to read:

17         501.203  Definitions.--As used in this chapter, unless

18  the context otherwise requires, the term:

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

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

21  association; joint venture; partnership; estate; trust;

22  business trust; syndicate; fiduciary; corporation; any

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

24  combination.

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

26  501.207, Florida Statutes, are amended to read:

27         501.207  Remedies of enforcing authority.--

28         (1)  The enforcing authority may bring:

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

30  act or practice violates this part.

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



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

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

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

  4  governmental entities for the actual damages caused by an act

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

  6  are not shall be recoverable under this section against a

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

  8  claims of a manufacturer or wholesaler without actual

  9  knowledge that it violated this part.

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

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

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

13  limited to, appointment of a master or receiver or

14  sequestration or freezing of assets, to reimburse consumers or

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

16  a transaction in accordance with the consumers' reasonable

17  expectations of consumers or governmental entities; to strike

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

19  unconscionable result; to order any defendant to divest

20  herself or himself of any interest in any enterprise,

21  including real estate; to impose reasonable restrictions upon

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

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

24  order the dissolution or reorganization of any enterprise; or

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

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

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

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

29  issued by the court shall be effective throughout the state

30  unless otherwise provided in the order.

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         (6)  The enforcing authority may terminate an

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

  3  written assurance of voluntary compliance with this part.

  4  Acceptance of an assurance may be conditioned on a commitment

  5  to reimburse consumers or governmental entities, make

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

  7  costs, or take other appropriate corrective action.  An

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

  9  However, unless an assurance has been rescinded by agreement

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

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

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

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

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

15         Section 4.  Section 501.2075, Florida Statutes, is

16  amended to read:

17         501.2075  Civil penalty.--Except as provided in s.

18  501.2077, any person, firm, corporation, association, or

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

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

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

22  willfully violating any of the rules of the department adopted

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

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

25  violations occur when the person knew or should have known

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

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

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

29  enforcing authority may terminate any investigation or action

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

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


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1  stipulated civil penalty.  The department or the court may

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

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

  4  foregoing, has previously made full restitution or

  5  reimbursement or has paid actual damages to the consumers or

  6  governmental entities who have been injured by the unlawful

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

  8  assessed in any litigation, the enforcing authority is

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

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

11  deposited as received into the General Revenue Fund

12  unallocated.

13         Section 5.  Section 501.2091, Florida Statutes, is

14  repealed.

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

16  Statutes, is amended to read:

17         501.211  Other individual remedies.--

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

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

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

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

22  501.2105.; However, no damages, fees, or costs are not shall

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

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

25  manufacturer or wholesaler without actual knowledge that it

26  violated this part.

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

28  Statutes, is amended to read:

29         501.212  Application.--This part does not apply to:

30         (4)  Any person or activity regulated under laws

31  administered by the Department of Insurance or the Florida


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1  Public Service Commission or banks and savings and loan

  2  associations regulated by the Department of Banking and

  3  Finance or banks or savings and loan associations regulated by

  4  federal agencies.

  5         Section 8.  Section 847.001, Florida Statutes, is

  6  amended to read:

  7         847.001  Definitions.--When used in this chapter:

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

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

10         (2)(1)  "Computer" means an electronic, magnetic,

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

12  device performing logical, arithmetic, or storage functions

13  and includes any data storage facility or communications

14  facility directly related to or operating in conjunction with

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

16  Internet service, or local bulletin board; any electronic

17  storage device, including a floppy disk or other magnetic

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

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

20         (3)(2)  "Deviate sexual intercourse" means sexual

21  conduct between persons not married to each other consisting

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

23  penis, or the mouth and the vulva.

24         (4)(3)  "Harmful to minors" means that quality of any

25  description, exhibition, presentation, or representation, in

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

27  when it:

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

29  or morbid interest of minors;

30

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         (b)  Is patently offensive to prevailing standards in

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

  3  suitable material for minors; and

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

  5  artistic, political, or scientific value for minors.

  6

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

  8  circumstance "harmful to minors."

  9         (5)(4)  "Minor" means any person under the age of 18

10  years.

11         (6)(5)  "Nudity" means the showing of the human male or

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

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

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

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

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

17  breastfeeding of her baby does not under any circumstance

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

19  is covered during or incidental to feeding.

20         (7)(6)  "Person" includes individuals, firms,

21  associations, corporations, and all other groups and

22  combinations.

23         (8)(7)  "Obscene" means the status of material which:

24         (a)  The average person, applying contemporary

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

26  the prurient interest;

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

28  sexual conduct as specifically defined herein; and

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

30  artistic, political, or scientific value.

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



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

  2  circumstance "obscene."

  3         (9)(8)  "Sadomasochistic abuse" means flagellation or

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

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

  6  the purpose of deriving sexual satisfaction, or satisfaction

  7  brought about as a result of sadistic violence, from

  8  inflicting harm on another or receiving such harm oneself.

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

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

11  the anal or vaginal penetration of another by any other

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

13  for a bona fide medical purpose.

14         (11)(10)  "Sexual bestiality" means any sexual act

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

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

17         (12)(11)  "Sexual conduct" means actual or simulated

18  sexual intercourse, deviate sexual intercourse, sexual

19  bestiality, masturbation, or sadomasochistic abuse; actual

20  lewd exhibition of the genitals; actual physical contact with

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

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

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

24  or any act or conduct which constitutes sexual battery or

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

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

27  circumstance constitute "sexual conduct."

28         (13)(12)  "Sexual excitement" means the condition of

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

30  stimulation or arousal.

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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         (14)(13)  "Simulated" means the explicit depiction of

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

  3  appearance of such conduct and which exhibits any uncovered

  4  portion of the breasts, genitals, or buttocks.

  5         (15)  "Transmit" means to send an electronic mail

  6  communication to a specified electronic mail address or

  7  addresses.

  8         Section 9.  Section 847.0137, Florida Statutes, is

  9  created to read:

10         847.0137  Transmission of pornography by means of the

11  Internet prohibited; penalties.--

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

13  means any person less than 18 years of age.

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

15  person in this state who knew or believed under the

16  circumstances that he or she was transmitting, by means of the

17  Internet:

18         (a)  Child pornography, as defined in s. 847.001, to

19  another person in this state or in another jurisdiction; or

20         (b)  An image harmful to minors, as defined in s.

21  847.001, to a known minor, or a person believed to be a minor,

22  in this state

23

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

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

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

27  person in any jurisdiction other than this state who knew or

28  believed under the circumstances that he or she was

29  transmitting, by means of the Internet:

30         (a)  Child pornography, as defined in s. 847.001, to

31  any person in this state; or


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



  1         (b)  An image harmful to minors, as defined in s.

  2  847.001, to a known minor, or a person believed to be a minor,

  3  in this state

  4

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

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

  7         (4)  This section shall not apply to subscription-based

  8  transmissions such as list servers.

  9         (5)  This section shall not be construed to prohibit

10  prosecution of a person in this state or another jurisdiction

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

12  providing for greater penalties than prescribed in this

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

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

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

16         (6)  A person is subject to prosecution in this state

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

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

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

20  paragraph (3)(b).

21         Section 10.  Section 847.0139, Florida Statutes, is

22  created to read:

23         847.0139  Immunity from civil liability for reporting

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

25  enforcement officer what the person reasonably believes to be

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

27  civilly liable for reporting such information. For purposes of

28  this section, reporting child pornography to a law enforcement

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

30  photograph or other evidence of what the person reasonably

31  believes to be child pornography.


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    CS for SB's 1284, 1476, 1528 & 1616     Second Engrossed (ntc)



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

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