Florida Senate - 2017 SB 870 By Senator Baxley 12-01035-17 2017870__ 1 A bill to be entitled 2 An act relating to Internet access; providing a short 3 title; creating s. 847.0143, F.S.; providing 4 definitions; prohibiting covered businesses from 5 manufacturing, distributing, or selling certain 6 devices unless the devices contain an active and 7 operating filter that blocks Internet access to 8 specified types of sexually oriented material, 9 prostitution, assignation, lewdness, and human 10 trafficking; providing for injunctive relief for 11 violations; providing requirements for a consumer to 12 have such filter deactivated; requiring a filter 13 deactivation fee and providing for the collection and 14 distribution thereof; prohibiting the distribution or 15 sale of certain devices without filters to minors and 16 adults; providing criminal penalties; providing for 17 jurisdiction to prosecute violations; providing for 18 continuing duties of covered businesses; requiring 19 covered businesses to respond to reports of obscene 20 material that has breached the filter; providing for 21 civil penalties for violations; providing for attorney 22 fees and costs; requiring covered businesses to 23 unblock nonobscene material; providing for declaratory 24 relief; exempting certain websites from filtering; 25 amending s. 16.56, F.S.; authorizing the Office of 26 Statewide Prosecution to prosecute violations; 27 providing an effective date. 28 29 WHEREAS, the state has a compelling interest in protecting 30 consumers from unwanted exposure to obscene material, and 31 WHEREAS, obscene material is easily retrieved using devices 32 that provide Internet access, increasing the demand for human 33 trafficking and prostitution and encouraging sexual 34 cyberharassment and child pornography, and 35 WHEREAS, the state has a compelling interest in regulating 36 wholesalers and manufacturers of such devices in the same manner 37 as brick-and-mortar pornography shops, and 38 WHEREAS, such devices never fully leave the instrumentality 39 and control of the manufacturer and wholesaler, elevating the 40 duty of care owed by the manufacturer and wholesaler, and 41 WHEREAS, the United States Supreme Court upheld a federal 42 law concerning Internet filtering as the least restrictive means 43 to accomplish the legislation’s goals in Ashcroft v. ACLU, 542 44 U.S. 656 (2004), and 45 WHEREAS, the state has a compelling interest in preventing 46 sexual offenses, including, but not limited to, human 47 trafficking, prostitution, and child pornography, which obscene 48 material inspires and encourages, and 49 WHEREAS, requiring wholesalers and manufacturers to install 50 Internet filters will mitigate the harm caused by the 51 nonconsensual dissemination of private sexual images, known as 52 revenge pornography and prohibited under s. 784.049, Florida 53 Statutes, and protect consumers from unintentionally accessing 54 child pornography and incurring criminal liability under s. 55 847.002, Florida Statutes, and 56 WHEREAS, the Legislature finds that the legal basis for the 57 constitutionality of the filter deactivation fee in this act is 58 the same as the legal basis for the pole tax imposed on adult 59 entertainment establishments upheld by the Texas Supreme Court 60 in Combs v. Texas Entertainment Association, et al., 347 S.W. 3d 61 277 (Sup. Ct. Tex. 2011), and 62 WHEREAS, the funds produced by such fee will provide grants 63 for state agencies, units of local government, and 64 nongovernmental organizations that are working to prevent child 65 exploitation and human trafficking, and 66 WHEREAS, the Legislature recognizes that devices that 67 provide Internet access are effectively pornography vending 68 machines in need of regulation, NOW, THEREFORE, 69 70 Be It Enacted by the Legislature of the State of Florida: 71 72 Section 1. This act may be cited as the “Human Trafficking 73 Prevention Act (HTPA).” 74 Section 2. Section 847.0143, Florida Statutes, is created 75 to read: 76 847.0143 Filtering Internet access to obscene material.— 77 (1) DEFINITIONS.—As used in this section, the term: 78 (a) “Child pornography” has the same meaning as in s. 79 847.001. 80 (b) “Covered business” means any business, manufacturer, 81 wholesaler, or individual in this state that manufactures, 82 distributes, or sells a device that provides Internet access. 83 (c) “Device” means any cellular telephone as defined in s. 84 817.4821, computer as defined in s. 847.001, gaming device, data 85 communication device as defined in s. 465.003, or other product 86 manufactured, distributed, or sold in this state after October 87 1, 2017, that provides Internet access. 88 (d) “Filter” means any hardware or software that restricts 89 or blocks Internet access to websites, electronic mail, chat, or 90 other Internet-based communications based on category, site, or 91 content. 92 (e) “Human trafficking” has the same meaning as in s. 93 787.06. 94 (f) “Obscene” has the same meaning as in s. 847.001. 95 (g) “Sexually cyberharass” has the same meaning as in s. 96 784.049(2)(c). 97 (2) SEXUALLY ORIENTED MATERIAL, PROSTITUTION, AND HUMAN 98 TRAFFICKING FILTERING.— 99 (a) A covered business may not manufacture, distribute, or 100 sell any device unless it contains an active and operating 101 filter that blocks or restricts Internet access to: 102 1. Obscene material as prohibited under ss. 847.012 and 103 847.0125. 104 2. Child pornography as prohibited under s. 847.002. 105 3. Images used to sexually cyberharass as prohibited under 106 s. 784.049. 107 4. Prostitution, assignation, or lewdness, or appointments 108 for prostitution, assignation, or lewdness, as prohibited under 109 s. 796.07. 110 5. Human trafficking as prohibited under s. 787.06. 111 (b) The state attorney or the Attorney General may seek 112 injunctive relief against a covered business that violates this 113 subsection. 114 (3) FILTER DEACTIVATION; FEE.— 115 (a) A covered business shall deactivate the filter if a 116 consumer: 117 1. Specifically and in writing requests that the filter be 118 deactivated. 119 2. Verifies in a face-to-face encounter either in person or 120 through electronic means that the consumer is 18 years of age or 121 older. 122 3. Has acknowledged receiving a written warning regarding 123 the potential danger of deactivating the filter. 124 4. Remits a $20 one-time filter deactivation fee to the 125 covered business, which it shall collect on behalf of the state. 126 (b) A covered business may charge its own reasonable filter 127 deactivation fee in addition to the fee charged in paragraph 128 (a). 129 (c) A covered business may not share the methods, source 130 code, or other operating instructions of the filter unless the 131 conditions in this subsection are met. 132 (4) VIOLATIONS.— 133 (a) A covered business that distributes or sells a device 134 without a filter to a minor commits a felony of the third 135 degree, punishable as provided in s. 775.082, s. 775.083, or s. 136 775.084. 137 (b) A covered business that distributes or sells a device 138 without a filter to an adult commits a misdemeanor of the first 139 degree, punishable as provided in s. 775.082 or s. 775.083, 140 unless the covered business complies with the requirements in 141 paragraph (3)(a). 142 (5) FILTER DEACTIVATION FEE PROCEEDS.— 143 (a) Each quarter, a covered business that receives a filter 144 deactivation fee under subsection (3) shall: 145 1. Remit all fee proceeds to the Chief Financial Officer in 146 the manner prescribed by the Chief Financial Officer. 147 2. File a report with the Chief Financial Officer in the 148 manner and containing the information prescribed by the Chief 149 Financial Officer. 150 (b) The Chief Financial Officer shall deposit the funds 151 remitted under this subsection as follows: 152 1. Sixty percent shall be deposited into the Crimes 153 Compensation Trust Fund under s. 960.21 to be used for costs 154 associated with relocation assistance for victims of human 155 trafficking set forth under s. 960.196 and costs associated with 156 the Statewide Council on Human Trafficking as set forth under s. 157 16.617. 158 2. Twenty percent shall be deposited into the Department of 159 Legal Affairs Grants and Donations Trust Fund to be used by the 160 department to provide grants to state agencies, units of local 161 government, and nongovernmental organizations to: 162 a. Develop, expand, or strengthen programs for victims of 163 human trafficking and child exploitation. Such programs may 164 include: 165 (I) Health services, including mental health services. 166 (II) Temporary and permanent housing placement. 167 (III) Legal and immigration services. 168 (IV) Employment placement, education, and training. 169 b. Ensure prevention of human trafficking, including 170 increasing public awareness. 171 c. Ensure protection of victims of human trafficking, 172 including training of first responders. 173 3. The remaining funds shall be deposited in the General 174 Revenue Fund. 175 (6) CONTINUING DUTIES.— 176 (a) A covered business shall send out filter updates 177 regularly to ensure the quality and performance of the filter in 178 restricting or blocking obscene material. 179 (b) A covered business shall establish reporting websites 180 or call centers where consumers may report obscene material that 181 has breached the filter. 182 (c)1. A covered business shall determine within a 183 reasonable time if the reported material is obscene. If the 184 covered business determines that the material is obscene, it 185 shall within a reasonable time install a filter update that 186 incorporates the obscene material and restricts or blocks 187 Internet access to such material to ensure continued compliance 188 with s. 847.012 and s. 847.0125. 189 2. If the covered business is not responsive to the 190 reporting of obscene material that has breached the filter, the 191 consumer or the Attorney General may bring a civil action 192 against the covered business. 193 3. The consumer or the Attorney General may seek a $500 194 civil penalty for each item of obscene material which was 195 reported but not subsequently filtered by the covered business. 196 4. If a consumer prevails in the civil action, the covered 197 business shall reimburse the consumer the purchase price of the 198 device. 199 5. A prevailing private plaintiff in an action under this 200 paragraph may be awarded reasonable attorney fees and costs. 201 (7) UNBLOCKING NONOBSCENE MATERIAL.— 202 (a) If the filter blocks nonobscene material and such 203 blockage is reported to the covered business’s call center or 204 reporting website, the covered business must unblock such 205 material within a reasonable time after receiving the report. 206 (b) Declaratory relief may be sought to unblock the 207 nonobscene material. 208 (c) A prevailing party in an action under this subsection 209 may be awarded reasonable attorney fees and costs. 210 (8) WEBSITES EXEMPT FROM FILTERING.—A covered business 211 shall not filter a commercial social networking website, as 212 defined in s. 943.0437(1), that has its own call center or 213 reporting website and is proactive in removing obscene material 214 once reported. 215 Section 3. Paragraph (a) of subsection (1) of section 216 16.56, Florida Statutes, is amended to read: 217 16.56 Office of Statewide Prosecution.— 218 (1) There is created in the Department of Legal Affairs an 219 Office of Statewide Prosecution. The office shall be a separate 220 “budget entity” as that term is defined in chapter 216. The 221 office may: 222 (a) Investigate and prosecute the offenses of: 223 1. Bribery, burglary, criminal usury, extortion, gambling, 224 kidnapping, larceny, murder, prostitution, perjury, robbery, 225 carjacking, and home-invasion robbery; 226 2. Any crime involving narcotic or other dangerous drugs; 227 3. Any violation of the Florida RICO (Racketeer Influenced 228 and Corrupt Organization) Act, including any offense listed in 229 the definition of racketeering activity in s. 895.02(8)(a), 230 providing such listed offense is investigated in connection with 231 a violation of s. 895.03 and is charged in a separate count of 232 an information or indictment containing a count charging a 233 violation of s. 895.03, the prosecution of which listed offense 234 may continue independently if the prosecution of the violation 235 of s. 895.03 is terminated for any reason; 236 4. Any violation of the Florida Anti-Fencing Act; 237 5. Any violation of the Florida Antitrust Act of 1980, as 238 amended; 239 6. Any crime involving, or resulting in, fraud or deceit 240 upon any person; 241 7. Any violation of s. 847.0135, relating to computer 242 pornography and child exploitation prevention,
orany offense 243 related to a violation of s. 847.0135, any violation of s. 244 847.0143, relating to filtering Internet access to obscene 245 material, or any violation of chapter 827 where the crime is 246 facilitated by or connected to the use of the Internet or any 247 device capable of electronic data storage or transmission; 248 8. Any violation of chapter 815; 249 9. Any criminal violation of part I of chapter 499; 250 10. Any violation of the Florida Motor Fuel Tax Relief Act 251 of 2004; 252 11. Any criminal violation of s. 409.920 or s. 409.9201; 253 12. Any crime involving voter registration, voting, or 254 candidate or issue petition activities; 255 13. Any criminal violation of the Florida Money Laundering 256 Act; 257 14. Any criminal violation of the Florida Securities and 258 Investor Protection Act; or 259 15. Any violation of chapter 787, as well as any and all 260 offenses related to a violation of chapter 787; 261 262 or any attempt, solicitation, or conspiracy to commit any of the 263 crimes specifically enumerated above. The office shall have such 264 power only when any such offense is occurring, or has occurred, 265 in two or more judicial circuits as part of a related 266 transaction, or when any such offense is connected with an 267 organized criminal conspiracy affecting two or more judicial 268 circuits. Informations or indictments charging such offenses 269 shall contain general allegations stating the judicial circuits 270 and counties in which crimes are alleged to have occurred or the 271 judicial circuits and counties in which crimes affecting such 272 circuits or counties are alleged to have been connected with an 273 organized criminal conspiracy. 274 Section 4. This act shall take effect October 1, 2017.