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.
   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,
   70  Be It Enacted by the Legislature of the State of Florida:
   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         847.0143Filtering 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).
   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).
  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.
  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, or any 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;
  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.