H.B. 187

This document includes House Committee Amendments incorporated into the bill on Wed, Feb 15, 2006 at 10:24 AM by ddonat. --> 1

CRIMINAL LAW AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: John Dougall
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies Title 76, Chapter 10, Part 12, Pornographic and Harmful Materials
10 and Performances.
11 Highlighted Provisions:
12 This bill:
13 . makes the following repeals and amendments H. [ in response to a current
13a lawsuit ] .H :
14 . repeals the section establishing an adult content registry;
15 . repeals the section requiring that an Internet services provider must provide to
16 consumers the service of blocking material on the adult content registry;
17 . provides a definition of "negligent" regarding material harmful to minors;
18 . removes two references to the adult content registry regarding Internet service
19 providers;
20 . changes the standard applicable to conduct of content providers and Internet
21 service providers regarding material harmful to minors from negligently or
22 recklessly to a standard of the exercise of reasonable care; and
23 . amends the provisions regarding charging the consumer for software that blocks
24 material harmful to minors.
25 Monies Appropriated in this Bill:
26 None
27 Other Special Clauses:

28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 76-10-1201, as last amended by Chapter 9, Laws of Utah 2001
32 76-10-1204, as last amended by Chapter 281, Laws of Utah 2005
33 76-10-1205, as last amended by Chapter 281, Laws of Utah 2005
34 76-10-1206, as last amended by Chapter 281, Laws of Utah 2005
35 76-10-1230, as enacted by Chapter 281, Laws of Utah 2005
36 76-10-1231, as enacted by Chapter 281, Laws of Utah 2005
37 REPEALS:
38 67-5-19, as enacted by Chapter 281, Laws of Utah 2005
39 76-10-1232 (Effective 05/01/06), as enacted by Chapter 281, Laws of Utah 2005
40
41 Be it enacted by the Legislature of the state of Utah:
42 Section 1. Section 76-10-1201 is amended to read:
43 76-10-1201. Definitions.
44 For the purpose of this part:
45 (1) "Contemporary community standards" means those current standards in the
46 vicinage where an offense alleged under this act has occurred, is occurring, or will occur.
47 (2) "Distribute" means to transfer possession of materials whether with or without
48 consideration.
49 (3) "Exhibit" means to show.
50 (4) "Harmful to minors" means that quality of any description or representation, in
51 whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when
52 it:
53 (a) taken as a whole, appeals to the prurient interest in sex of minors;
54 (b) is patently offensive to prevailing standards in the adult community as a whole with
55 respect to what is suitable material for minors; and
56 (c) taken as a whole, does not have serious value for minors. Serious value includes
57 only serious literary, artistic, political, or scientific value for minors.
58 (5) "Knowingly" means an awareness, whether actual or constructive, of the character

59 of material or of a performance. A person has constructive knowledge if a reasonable
60 inspection or observation under the circumstances would have disclosed the nature of the
61 subject matter and if a failure to inspect or observe is either for the purpose of avoiding the
62 disclosure or is criminally negligent.
63 (6) "Material" means anything printed or written or any picture, drawing, photograph,
64 motion picture, or pictorial representation, or any statue or other figure, or any recording or
65 transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or
66 may be used as a means of communication. Material includes undeveloped photographs,
67 molds, printing plates, and other latent representational objects.
68 (7) "Minor" means any person less than [eighteen] 18 years of age.
69 (8) "Negligently" means simple negligence, the failure to exercise that degree of care
70 that reasonable and prudent persons exercise under like or similar circumstances.
71 [(8)] (9) "Nudity" means the showing of the human male or female genitals, pubic area,
72 or buttocks, with less than an opaque covering, or the showing of a female breast with less than
73 an opaque covering, or any portion thereof below the top of the nipple, or the depiction of
74 covered male genitals in a discernibly turgid state.
75 [(9)] (10) "Performance" means any physical human bodily activity, whether engaged
76 in alone or with other persons, including but not limited to singing, speaking, dancing, acting,
77 simulating, or pantomiming.
78 [(10)] (11) "Public place" includes a place to which admission is gained by payment of
79 a membership or admission fee, however designated, notwithstanding its being designated a
80 private club or by words of like import.
81 [(11)] (12) "Sado-masochistic abuse" means flagellation or torture by or upon a person
82 who is nude or clad in undergarments, a mask, or in a revealing or bizarre costume, or the
83 condition of being fettered, bound, or otherwise physically restrained on the part of one so
84 clothed.
85 [(12)] (13) "Sexual conduct" means acts of masturbation, sexual intercourse, or any
86 touching of a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is a
87 female, breast, whether alone or between members of the same or opposite sex or between
88 humans and animals in an act of apparent or actual sexual stimulation or gratification.
89 [(13)] (14) "Sexual excitement" means a condition of human male or female genitals

90 when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging
91 in or witnessing sexual conduct or nudity.
92 Section 2. Section 76-10-1204 is amended to read:
93 76-10-1204. Distributing pornographic material.
94 (1) A person is guilty of distributing pornographic material when he knowingly:
95 (a) sends or brings any pornographic material into the state with intent to distribute or
96 exhibit it to others;
97 (b) prepares, publishes, prints, or possesses any pornographic material with intent to
98 distribute or exhibit it to others;
99 (c) distributes or offers to distribute, exhibits or offers to exhibit any pornographic
100 material to others;
101 (d) writes, creates, or solicits the publication or advertising of pornographic material;
102 (e) promotes the distribution or exhibition of material he represents to be pornographic;
103 or
104 (f) presents or directs a pornographic performance in any public place or any place
105 exposed to public view or participates in that portion of the performance which makes it
106 pornographic.
107 (2) Each distributing of pornographic material as defined in Subsection (1) is a separate
108 offense.
109 (3) It is a separate offense under this section for:
110 (a) each day's exhibition of any pornographic motion picture film; and
111 (b) each day in which any pornographic publication is displayed or exhibited in a
112 public place with intent to distribute or exhibit it to others.
113 (4) (a) An offense under this section is a third degree felony punishable by:
114 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article
115 exhibited up to the maximum allowed by law; and
116 (ii) incarceration, without suspension of sentence in any way, for a term of not less than
117 30 days.
118 (b) This Subsection (4) supersedes Section 77-18-1 .
119 [(5) A service provider, as defined in Section 76-10-1230 , complies with this section if
120 it complies with Sections 76-10-1231 and 76-10-1232 .]

121 Section 3. Section 76-10-1205 is amended to read:
122 76-10-1205. Inducing acceptance of pornographic material.
123 (1) A person is guilty of inducing acceptance of pornographic material when he
124 knowingly:
125 (a) requires or demands as a condition to a sale, allocation, consignment, or delivery
126 for resale of any newspaper, magazine, periodical, book, publication, or other merchandise that
127 the purchaser or consignee receive any pornographic material or material reasonably believed
128 by the purchaser or consignee to be pornographic; or
129 (b) denies, revokes, or threatens to deny or revoke a franchise, or to impose any
130 penalty, financial or otherwise, because of the failure or refusal to accept pornographic material
131 or material reasonably believed by the purchaser or consignee to be pornographic.
132 (2) (a) An offense under this section is a third degree felony punishable by:
133 (i) a minimum mandatory fine of not less than $1,000 plus $10 for each article
134 exhibited up to the maximum allowed by law; and
135 (ii) incarceration, without suspension of sentence in any way, for a term of not less than
136 30 days.
137 (b) This Subsection (2) supersedes Section 77-18-1 .
138 [(3) A service provider, as defined in Section 76-10-1230 , complies with this section if
139 it complies with Sections 76-10-1231 and 76-10-1232 .]
140 Section 4. Section 76-10-1206 is amended to read:
141 76-10-1206. Dealing in material harmful to a minor.
142 (1) A person is guilty of dealing in material harmful to minors when, knowing that a
143 person is a minor, or having negligently [or recklessly] failed to determine the proper age of a
144 minor, he:
145 (a) intentionally distributes or offers to distribute, exhibits or offers to exhibit to a
146 minor any material harmful to minors;
147 (b) intentionally produces, presents, or directs any performance before a minor, that is
148 harmful to minors; or
149 (c) intentionally participates in any performance before a minor, that is harmful to
150 minors.
151 (2) (a) Each separate offense under this section is a third degree felony punishable by:

152 (i) a minimum mandatory fine of not less than $300 plus $10 for each article exhibited
153 up to the maximum allowed by law; and
154 (ii) incarceration, without suspension of sentence, for a term of not less than 14 days.
155 (b) This section supersedes Section 77-18-1 .
156 (3) (a) If a defendant has already been convicted once under this section, each separate
157 further offense is a second degree felony punishable by:
158 (i) a minimum mandatory fine of not less than $5,000 plus $10 for each article
159 exhibited up to the maximum allowed by law; and
160 (ii) incarceration, without suspension of sentence, for a term of not less than one year.
161 (b) This section supersedes Section 77-18-1 .
162 (4) (a) A service provider, as defined in Section 76-10-1230 , [complies with] is not
163 negligent under this section if it complies with [Sections] Section 76-10-1231 [and
164 76-10-1232 ].
165 (b) A content provider, as defined in Section 76-10-1230 , [complies with] is not
166 negligent under this section if it complies with Section 76-10-1233 .
167 Section 5. Section 76-10-1230 is amended to read:
168 76-10-1230. Definitions.
169 As used in Sections 76-10-1231 , 76-10-1232 , and 76-10-1233 :
170 (1) "Access restricted" means that a content provider limits access to material harmful
171 to minors by:
172 (a) properly rating content;
173 (b) providing an age verification mechanism designed to prevent a minor's access to
174 material harmful to minors, including requiring use of a credit card, adult access code, or
175 digital certificate verifying age; or
176 (c) any other reasonable measures feasible under available technology.
177 [(2) "Adult content registry" means the adult content registry created by Section
178 67-5-19 .]
179 [(3)] (2) "Consumer" means a natural person residing in this state who subscribes to a
180 service provided by a service provider for personal or residential use.
181 [(4)] (3) "Content provider" means a person [that] domiciled in Utah or that generates
182 or hosts content in Utah, and that creates, collects, acquires, or organizes electronic data for

183 electronic delivery to a consumer with the intent of making a profit.
184 [(5)] (4) (a) "Hosting company" means a person that provides services or facilities for
185 storing or distributing content over the Internet without editorial or creative alteration of the
186 content.
187 (b) A hosting company may have policies concerning acceptable use without becoming
188 a content provider under Subsection [(4)] (3).
189 [(6)] (5) (a) "Internet service provider" means a person engaged in the business of
190 providing a computer and communications facility, with the intent of making a profit, through
191 which a consumer may obtain access to the Internet.
192 (b) "Internet service provider" does not include a common carrier if it provides only
193 telecommunications service.
194 [(7)] (6) "Properly rated" means content using a labeling system to label material
195 harmful to minors provided by the content provider in a way that:
196 (a) accurately apprises a consumer of the presence of material harmful to minors; and
197 (b) allows the consumer the ability to control access to material harmful to minors
198 based on the material's rating by use of reasonably priced commercially available software,
199 including software in the public domain.
200 [(8)] (7) (a) Except as provided in Subsection [(8)] (7)(b), "service provider" means:
201 (i) an Internet service provider; or
202 (ii) a person who otherwise provides an Internet access service to a consumer.
203 (b) "Service provider" does not include a person who does not terminate a service in
204 this state, but merely transmits data through:
205 (i) a wire;
206 (ii) a cable; or
207 (iii) an antenna.
208 (c) "Service provider," notwithstanding Subsection [(8)] (7)(b), includes a person who
209 meets the requirements of Subsection [(8)] (7)(a) and leases or rents a wire or cable for the
210 transmission of data.
211 Section 6. Section 76-10-1231 is amended to read:
212 76-10-1231. Data service providers -- Internet content harmful to minors.
213 (1) (a) Upon request by a consumer, a service provider shall filter content to prevent

214 the transmission of material harmful to minors to the consumer.
215 (b) A service provider complies with Subsection (1)(a) if it uses a generally accepted
216 and commercially reasonable method of filtering.
217 (2) At the time of a consumer's subscription to a service provider's service, or at the
218 time this section takes effect if the consumer subscribes to the service provider's service at the
219 time this section takes effect, the service provider shall notify the consumer in a conspicuous
220 manner that the consumer may request to have material harmful to minors blocked under
221 Subsection (1).
222 (3) (a) A service provider may comply with Subsection (1) by:
223 (i) providing in-network filtering to prevent receipt of material harmful to minors; or
224 (ii) providing software for contemporaneous installation on the consumer's computer
225 that blocks, in an easy-to-enable and commercially reasonable manner, receipt of material
226 harmful to minors.
227 [(b) (i) Except as provided in Subsection (3)(b)(ii), a service provider may not charge a
228 consumer for blocking material or providing software under this section, except that a service
229 provider may increase the cost to all subscribers to the service provider's services to recover the
230 cost of complying with this section.]
231 [(ii) A service provider with fewer than 7,500 subscribers may charge a consumer for
232 providing software under Subsection (3)(a)(ii) if the charge does not exceed the service
233 provider's cost for the software.]
234 (b) A service provider may charge a consumer for providing software under Subsection
235 (3)(a)(ii).
236 (4) If the attorney general determines that a service provider violates Subsection (1) or
237 (2), the attorney general shall:
238 (a) notify the service provider that the service provider is in violation of Subsection (1)
239 or (2); and
240 (b) notify the service provider that the service provider has 30 days to comply with the
241 provision being violated or be subject to Subsection (5).
242 (5) A service provider that violates Subsection (1) or (2) is:
243 (a) subject to a civil fine of $2,500 for each separate violation of Subsection (1) or (2),
244 up to $10,000 per day; and

245 (b) guilty of a class A misdemeanor if:
246 (i) the service provider knowingly or intentionally fails to comply with Subsection (1);
247 or
248 (ii) the service provider fails to provide the notice required by Subsection (2).
249 (6) A proceeding to impose a civil fine under Subsection (5)(a) may only be brought by
250 the attorney general in a court of competent jurisdiction.
251 (7) (a) The Division of Consumer Protection within the Department of Commerce
252 shall, in consultation with other entities as the Division of Consumer Protection considers
253 appropriate, test the effectiveness of a service provider's system for blocking material harmful
254 to minors under Subsection (1) at least annually.
255 (b) The results of testing by the Division of Consumer Protection under Subsection
256 (7)(a) shall be made available to:
257 (i) the service provider that is the subject of the test; and
258 (ii) the public.
259 (c) The Division of Consumer Protection shall make rules in accordance with Title 63,
260 Chapter 46a, Utah Administrative Rulemaking Act, to fulfil its duties under this section.
261 Section 7. Repealer.
262 This bill repeals:
263 Section 67-5-19, Adult content registry.
264 Section 76-10-1232 (Effective 05/01/06), Data service providers -- Adult content
265 registry.




Legislative Review Note
as of 2-7-06 2:49 PM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel