H.B. 5 Enrolled

1

INTERNET SEXUAL CONTENT - PROTECTION
2 OF MINORS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Paul Ray
6 Senate Sponsor: Darin G. Peterson
7 Cosponsor:Bradley M. Daw 8
9 LONG TITLE
10 General Description:
11 This bill modifies the Criminal Code by amending the penalties for enticing a minor
12 over the Internet in order to commit a sexual offense. This bill also modifies Title 76,
13 Chapter 10, Part 12, Pornographic and Harmful Materials and Performances.
14 Highlighted Provisions:
15 This bill:
16 . amends the penalty for enticing a minor to commit a first degree felony sexual
17 offense, so that the enticement offense is a second degree felony for the first
18 violation, and for any subsequent violation is a first degree felony with a specified
19 penalty;
20 . includes enticing a minor over the Internet when subsequent contact is by electronic
21 or written means other than the use of a computer;
22 . provides that if a defendant commits the offense of enticing a minor to commit any
23 felony sexual offense, and the defendant has previously committed a sexual offense
24 or kidnapping against a minor, the court may not shorten the prison sentence;
25 . repeals the following sections:
26 . repeals the section establishing an adult content registry and references to the
27 registry; and
28 . repeals the section requiring that an Internet services provider must provide to
29 consumers the service of blocking material on the adult content registry;

30 . provides a definition of "negligent" regarding material harmful to minors;
31 . describes the circumstances under which an Internet service provider or a hosting
32 company is not guilty of criminal conduct involving distributing pornographic
33 material, inducing acceptance of pornographic material, or dealing in material
34 harmful to a minor;
35 . increases the minimum mandatory fine for dealing in material harmful to a minor;
36 . provides that a felony or class A offense of enticing a minor over the Internet is a
37 prior offense regarding sex offender lifetime registration;
38 . clarifies the standard applicable to conduct of Internet service providers regarding
39 filtering of material harmful to minors from negligently or recklessly to a standard
40 of knowing or intentional conduct; and
41 . amends the provisions regarding charging the consumer for software that blocks
42 material harmful to minors.
43 Monies Appropriated in this Bill:
44 None
45 Other Special Clauses:
46 This bill provides an immediate effective date.
47 Utah Code Sections Affected:
48 AMENDS:
49 76-4-401, as last amended by Chapter 164, Laws of Utah 2003
50 76-10-1201, as last amended by Chapter 9, Laws of Utah 2001
51 76-10-1204, as last amended by Chapter 281, Laws of Utah 2005
52 76-10-1205, as last amended by Chapter 281, Laws of Utah 2005
53 76-10-1206, as last amended by Chapter 281, Laws of Utah 2005
54 76-10-1230, as enacted by Chapter 281, Laws of Utah 2005
55 76-10-1231, as enacted by Chapter 281, Laws of Utah 2005
56 77-27-21.5, as last amended by Chapters 189, 269 and 334, Laws of Utah 2006
57 REPEALS:

58 67-5-19, as enacted by Chapter 281, Laws of Utah 2005
59 76-10-1232, as enacted by Chapter 281, Laws of Utah 2005
60
61 Be it enacted by the Legislature of the state of Utah:
62 Section 1. Section 76-4-401 is amended to read:
63 76-4-401. Enticing a minor over the Internet -- Elements -- Penalties.
64 (1) (a) A person commits enticement of a minor over the Internet when the person
65 knowingly uses a computer to solicit, seduce, lure, or entice, or attempts to use a computer to
66 solicit, seduce, lure, or entice a minor or a person the defendant believes to be a minor to
67 engage in any sexual activity which is a violation of state criminal law.
68 (b) A person commits enticement of a minor over the Internet when the person
69 knowingly uses a computer to initiate contact with a minor or a person the defendant believes
70 to be a minor and subsequently, by any electronic or written means, solicits, seduces, lures, or
71 entices, or attempts to solicit, seduce, lure, or entice the minor or a person the defendant
72 believes to be the minor to engage in any sexual activity which is a violation of state criminal
73 law.
74 (2) It is not a defense to the crime of enticing a minor under Subsection (1), or an
75 attempt to commit this offense, that a law enforcement officer or an undercover operative who
76 is working with a law enforcement agency was involved in the detection or investigation of the
77 offense.
78 (3) An enticement of a minor under Subsection (1) with the intent to commit:
79 (a) a first degree felony is a:
80 (i) second degree felony upon the first conviction for violation of this Subsection
81 (3)(a); and
82 (ii) first degree felony punishable by imprisonment for an indeterminate term of not
83 fewer than three years and which may be for life, upon a second or any subsequent conviction
84 for a violation of this Subsection (3)(a);
85 (b) a second degree felony is a third degree felony;

86 (c) a third degree felony is a class A misdemeanor;
87 (d) a class A misdemeanor is a class B misdemeanor; and
88 (e) a class B misdemeanor is a class C misdemeanor.
89 (4) (a) When a person who commits a felony violation of this section has been
90 previously convicted of an offense under Subsection (4)(b), the court may not in any way
91 shorten the prison sentence, and the court may not:
92 (i) grant probation;
93 (ii) suspend the execution or imposition of the sentence;
94 (iii) enter a judgment for a lower category of offense; or
95 (iv) order hospitalization.
96 (b) The sections referred to in Subsection (4)(a) are:
97 (i) Section 76-4-401 , enticing a minor over the Internet;
98 (ii) Section 76-5-301.1 , child kidnapping;
99 (iii) Section 76-5-402 , rape;
100 (iv) Section 76-5-402.1 , rape of a child;
101 (v) Section 76-5-402.2 , object rape;
102 (vi) Section 76-5-402.3 , object rape of a child;
103 (vii) Subsection 76-5-403 (2), forcible sodomy;
104 (viii) Section 76-5-403.1 , sodomy on a child;
105 (ix) Section 76-5-404 , forcible sexual abuse;
106 (x) Section 76-5-404.1 , sexual abuse of a child and aggravated sexual abuse of a child;
107 (xi) Section 76-5-405 , aggravated sexual assault;
108 (xii) any offense in any other state or federal jurisdiction which constitutes or would
109 constitute a crime in Subsections (4)(b)(i) through (xi); or
110 (xiii) the attempt to commit any of the offenses in Subsections (4)(b)(i) through (xii).
111 Section 2. Section 76-10-1201 is amended to read:
112 76-10-1201. Definitions.
113 For the purpose of this part:

114 (1) "Contemporary community standards" means those current standards in the
115 vicinage where an offense alleged under this act has occurred, is occurring, or will occur.
116 (2) "Distribute" means to transfer possession of materials whether with or without
117 consideration.
118 (3) "Exhibit" means to show.
119 (4) "Harmful to minors" means that quality of any description or representation, in
120 whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when
121 it:
122 (a) taken as a whole, appeals to the prurient interest in sex [of] with minors;
123 (b) is patently offensive to prevailing standards in the adult community as a whole with
124 respect to what is suitable material for minors; and
125 (c) taken as a whole, does not have serious value for minors. Serious value includes
126 only serious literary, artistic, political, or scientific value for minors.
127 (5) "Knowingly" means an awareness, whether actual or constructive, of the character
128 of material or of a performance. A person has constructive knowledge if a reasonable
129 inspection or observation under the circumstances would have disclosed the nature of the
130 subject matter and if a failure to inspect or observe is either for the purpose of avoiding the
131 disclosure or is criminally negligent as described in Section 76-2-103 .
132 (6) "Material" means anything printed or written or any picture, drawing, photograph,
133 motion picture, or pictorial representation, or any statue or other figure, or any recording or
134 transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or
135 may be used as a means of communication. Material includes undeveloped photographs,
136 molds, printing plates, and other latent representational objects.
137 (7) "Minor" means any person less than [eighteen] 18 years of age.
138 (8) "Negligently" means simple negligence, the failure to exercise that degree of care
139 that a reasonable and prudent person would exercise under like or similar circumstances.
140 [(8)] (9) "Nudity" means the showing of the human male or female genitals, pubic area,
141 or buttocks, with less than an opaque covering, or the showing of a female breast with less than

142 an opaque covering, or any portion thereof below the top of the nipple, or the depiction of
143 covered male genitals in a discernibly turgid state.
144 [(9)] (10) "Performance" means any physical human bodily activity, whether engaged
145 in alone or with other persons, including but not limited to singing, speaking, dancing, acting,
146 simulating, or pantomiming.
147 [(10)] (11) "Public place" includes a place to which admission is gained by payment of
148 a membership or admission fee, however designated, notwithstanding its being designated a
149 private club or by words of like import.
150 [(11)] (12) "Sado-masochistic abuse" means flagellation or torture by or upon a person
151 who is nude or clad in undergarments, a mask, or in a revealing or bizarre costume, or the
152 condition of being fettered, bound, or otherwise physically restrained on the part of one so
153 clothed.
154 [(12)] (13) "Sexual conduct" means acts of masturbation, sexual intercourse, or any
155 touching of a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is a
156 female, breast, whether alone or between members of the same or opposite sex or between
157 humans and animals in an act of apparent or actual sexual stimulation or gratification.
158 [(13)] (14) "Sexual excitement" means a condition of human male or female genitals
159 when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging
160 in or witnessing sexual conduct or nudity.
161 Section 3. Section 76-10-1204 is amended to read:
162 76-10-1204. Distributing pornographic material -- Exemptions for Internet
163 service providers and hosting companies.
164 (1) A person is guilty of distributing pornographic material when he knowingly:
165 (a) sends or brings any pornographic material into the state with intent to distribute or
166 exhibit it to others;
167 (b) prepares, publishes, prints, or possesses any pornographic material with intent to
168 distribute or exhibit it to others;
169 (c) distributes or offers to distribute, exhibits or offers to exhibit any pornographic

170 material to others;
171 (d) writes, creates, or solicits the publication or advertising of pornographic material;
172 (e) promotes the distribution or exhibition of material he represents to be pornographic;
173 or
174 (f) presents or directs a pornographic performance in any public place or any place
175 exposed to public view or participates in that portion of the performance which makes it
176 pornographic.
177 (2) Each distributing of pornographic material as defined in Subsection (1) is a separate
178 offense.
179 (3) It is a separate offense under this section for:
180 (a) each day's exhibition of any pornographic motion picture film; and
181 (b) each day in which any pornographic publication is displayed or exhibited in a
182 public place with intent to distribute or exhibit it to others.
183 (4) (a) An offense under this section is a third degree felony punishable by:
184 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article
185 exhibited up to the maximum allowed by law; and
186 (ii) incarceration, without suspension of sentence in any way, for a term of not less than
187 30 days.
188 (b) This Subsection (4) supersedes Section 77-18-1 .
189 [(5) A service provider, as defined in Section 76-10-1230 , complies with this section if
190 it complies with Sections 76-10-1231 and 76-10-1232 .]
191 (5) (a) This section does not apply to an Internet service provider, as defined in Section
192 76-10-1230 , if:
193 (i) the distribution of pornographic material by the Internet service provider occurs
194 only incidentally through the Internet service provider's function of:
195 (A) transmitting or routing data from one person to another person; or
196 (B) providing a connection between one person and another person;
197 (ii) the Internet service provider does not intentionally aid or abet in the distribution of

198 the pornographic material; and
199 (iii) the Internet service provider does not knowingly receive funds from or through a
200 person who distributes the pornographic material in exchange for permitting the person to
201 distribute the pornographic material.
202 (b) This section does not apply to a hosting company, as defined in Section
203 76-10-1230 , if:
204 (i) the distribution of pornographic material by the hosting company occurs only
205 incidentally through the hosting company's function of providing data storage space or data
206 caching to a person;
207 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
208 of the pornographic material; and
209 (iii) the hosting company does not knowingly receive funds from or through a person
210 who distributes the pornographic material in exchange for permitting the person to distribute,
211 store, or cache the pornographic material.
212 Section 4. Section 76-10-1205 is amended to read:
213 76-10-1205. Inducing acceptance of pornographic material -- Exemptions for
214 Internet service providers and hosting companies.
215 (1) A person is guilty of inducing acceptance of pornographic material when he
216 knowingly:
217 (a) requires or demands as a condition to a sale, allocation, consignment, or delivery
218 for resale of any newspaper, magazine, periodical, book, publication, or other merchandise that
219 the purchaser or consignee receive any pornographic material or material reasonably believed
220 by the purchaser or consignee to be pornographic; or
221 (b) denies, revokes, or threatens to deny or revoke a franchise, or to impose any
222 penalty, financial or otherwise, because of the failure or refusal to accept pornographic material
223 or material reasonably believed by the purchaser or consignee to be pornographic.
224 (2) (a) An offense under this section is a third degree felony punishable by:
225 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article

226 exhibited up to the maximum allowed by law; and
227 (ii) incarceration, without suspension of sentence in any way, for a term of not less than
228 30 days.
229 (b) This Subsection (2) supersedes Section 77-18-1 .
230 [(3) A service provider, as defined in Section 76-10-1230 , complies with this section if
231 it complies with Sections 76-10-1231 and 76-10-1232 .]
232 (3) (a) This section does not apply to an Internet service provider, as defined in Section
233 76-10-1230 , if:
234 (i) the distribution of pornographic material by the Internet service provider occurs
235 only incidentally through the Internet service provider's function of:
236 (A) transmitting or routing data from one person to another person; or
237 (B) providing a connection between one person and another person;
238 (ii) the Internet service provider does not intentionally aid or abet in the distribution of
239 the pornographic material; and
240 (iii) the Internet service provider does not knowingly receive funds from or through a
241 person who distributes the pornographic material in exchange for permitting the person to
242 distribute the pornographic material.
243 (b) This section does not apply to a hosting company, as defined in Section
244 76-10-1230 , if:
245 (i) the distribution of pornographic material by the hosting company occurs only
246 incidentally through the hosting company's function of providing data storage space or data
247 caching to a person;
248 (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
249 of the pornographic material; and
250 (iii) the hosting company does not knowingly receive funds from or through a person
251 who distributes the pornographic material in exchange for permitting the person to distribute,
252 store, or cache the pornographic material.
253 Section 5. Section 76-10-1206 is amended to read:

254 76-10-1206. Dealing in material harmful to a minor -- Exemptions for Internet
255 service providers and hosting companies.
256 (1) A person is guilty of dealing in material harmful to minors when, knowing that a
257 person is a minor, or having negligently [or recklessly] failed to determine the proper age of a
258 minor, [he] the person:
259 (a) intentionally distributes or offers to distribute, exhibits or offers to exhibit to a
260 minor any material harmful to minors;
261 (b) intentionally produces, presents, or directs any performance before a minor, that is
262 harmful to minors; or
263 (c) intentionally participates in any performance before a minor, that is harmful to
264 minors.
265 (2) (a) Each separate offense under this section is a third degree felony punishable by:
266 (i) a minimum mandatory fine of not less than [$300] $1,000 plus $10 for each article
267 exhibited up to the maximum allowed by law; and
268 (ii) incarceration, without suspension of sentence, for a term of not less than 14 days.
269 (b) This section supersedes Section 77-18-1 .
270 (3) (a) If a defendant has already been convicted once under this section, each separate
271 further offense is a second degree felony punishable by:
272 (i) a minimum mandatory fine of not less than $5,000 plus $10 for each article
273 exhibited up to the maximum allowed by law; and
274 (ii) incarceration, without suspension of sentence, for a term of not less than one year.
275 (b) This section supersedes Section 77-18-1 .
276 (c) (i) This section does not apply to an Internet service provider, as defined in Section
277 76-10-1230 , if:
278 (A) the distribution of pornographic material by the Internet service provider occurs
279 only incidentally through the Internet service provider's function of:
280 (I) transmitting or routing data from one person to another person; or
281 (II) providing a connection between one person and another person;

282 (B) the Internet service provider does not intentionally aid or abet in the distribution of
283 the pornographic material; and
284 (C) the Internet service provider does not knowingly receive funds from or through a
285 person who distributes the pornographic material in exchange for permitting the person to
286 distribute the pornographic material.
287 (ii) This section does not apply to a hosting company, as defined in Section
288 76-10-1230 , if:
289 (A) the distribution of pornographic material by the hosting company occurs only
290 incidentally through the hosting company's function of providing data storage space or data
291 caching to a person;
292 (B) the hosting company does not intentionally engage, aid, or abet in the distribution
293 of the pornographic material; and
294 (C) the hosting company does not knowingly receive funds from or through a person
295 who distributes the pornographic material in exchange for permitting the person to distribute,
296 store, or cache the pornographic material.
297 (4) (a) A service provider, as defined in Section 76-10-1230 , [complies with] is not
298 negligent under this section if it complies with [Sections] Section 76-10-1231 [and
299 76-10-1232 ].
300 (b) A content provider, as defined in Section 76-10-1230 , [complies with] is not
301 negligent under this section if it complies with Section 76-10-1233 .
302 Section 6. Section 76-10-1230 is amended to read:
303 76-10-1230. Definitions.
304 As used in Sections 76-10-1231 [, 76-10-1232 ,] and 76-10-1233 :
305 (1) "Access restricted" means that a content provider limits access to material harmful
306 to minors by:
307 (a) properly rating content;
308 (b) providing an age verification mechanism designed to prevent a minor's access to
309 material harmful to minors, including requiring use of a credit card, adult access code, or

310 digital certificate verifying age; or
311 (c) any other reasonable measures feasible under available technology.
312 [(2) "Adult content registry" means the adult content registry created by Section
313 67-5-19 .]
314 [(3)] (2) "Consumer" means a natural person residing in this state who subscribes to a
315 service provided by a service provider for personal or residential use.
316 [(4)] (3) "Content provider" means a person [that] domiciled in Utah or that generates
317 or hosts content in Utah, and that creates, collects, acquires, or organizes electronic data for
318 electronic delivery to a consumer with the intent of making a profit.
319 [(5)] (4) (a) "Hosting company" means a person that provides services or facilities for
320 storing or distributing content over the Internet without editorial or creative alteration of the
321 content.
322 (b) A hosting company may have policies concerning acceptable use without becoming
323 a content provider under Subsection [(4)] (3).
324 [(6)] (5) (a) "Internet service provider" means a person engaged in the business of
325 providing a computer [and] communications facility in Utah, with the intent of making a profit,
326 through which a consumer may obtain access to the Internet.
327 (b) "Internet service provider" does not include a common carrier if it provides only
328 telecommunications service.
329 [(7)] (6) "Properly rated" means content using a labeling system to label material
330 harmful to minors provided by the content provider in a way that:
331 (a) accurately apprises a consumer of the presence of material harmful to minors; and
332 (b) allows the consumer the ability to control access to material harmful to minors
333 based on the material's rating by use of reasonably priced commercially available software,
334 including software in the public domain.
335 [(8)] (7) (a) Except as provided in Subsection [(8)] (7)(b), "service provider" means:
336 (i) an Internet service provider; or
337 (ii) a person who otherwise provides an Internet access service to a consumer in Utah

338 with the intent of making a profit.
339 (b) "Service provider" does not include a person who does not terminate a service in
340 this state, but merely transmits data through:
341 (i) a wire;
342 (ii) a cable; or
343 (iii) an antenna.
344 (c) "Service provider," notwithstanding Subsection [(8)] (7)(b), includes a person who
345 meets the requirements of Subsection [(8)] (7)(a) and leases or rents a wire or cable for the
346 transmission of data.
347 Section 7. Section 76-10-1231 is amended to read:
348 76-10-1231. Data service providers -- Internet content harmful to minors.
349 (1) (a) Upon request by a consumer, a service provider shall filter content to prevent
350 the transmission of material harmful to minors to the consumer.
351 (b) A service provider complies with Subsection (1)(a) if it uses a generally accepted
352 and commercially reasonable method of filtering.
353 (2) At the time of a consumer's subscription to a service provider's service, or at the
354 time this section takes effect if the consumer subscribes to the service provider's service at the
355 time this section takes effect, the service provider shall notify the consumer in a conspicuous
356 manner that the consumer may request to have material harmful to minors blocked under
357 Subsection (1).
358 (3) (a) A service provider may comply with Subsection (1) by:
359 (i) providing in-network filtering to prevent receipt of material harmful to minors,
360 provided that the filtering does not affect or interfere with access to Internet content for
361 consumers who do not request filtering under Subsection (1); or
362 (ii) providing software, or engaging a third party to provide software, for
363 contemporaneous installation on the consumer's computer that blocks, in an easy-to-enable and
364 commercially reasonable manner, receipt of material harmful to minors.
365 [(b) (i) Except as provided in Subsection (3)(b)(ii), a service provider may not charge a

366 consumer for blocking material or providing software under this section, except that a service
367 provider may increase the cost to all subscribers to the service provider's services to recover the
368 cost of complying with this section.]
369 [(ii) A service provider with fewer than 7,500 subscribers may charge a consumer for
370 providing software under Subsection (3)(a)(ii) if the charge does not exceed the service
371 provider's cost for the software.]
372 (b) A service provider may charge a consumer for providing filtering under Subsection