First Substitute H.B. 71

This document includes House Floor Amendments incorporated into the bill on Fri, Feb 14, 2014 at 12:46 PM by lerror. --> This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 25, 2014 at 9:20 AM by lpoole. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Thu, Feb 27, 2014 at 3:57 PM by bhansen. --> This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Thu, Mar 13, 2014 at 9:15 AM by lpoole. -->

Representative Marie H. Poulson proposes the following substitute bill:

1 DISTRIBUTION OF INTIMATE IMAGES
2 2014 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Marie H. Poulson
5 Senate Sponsor: Todd Weiler
6
7 LONG TITLE
8 General Description:
9 This bill modifies Title 76, Utah Criminal Code, regarding distributing intimate images
10 of a person without that person's permission.
11 Highlighted Provisions:
12 This bill:
13 . provides a definition of "intimate image";
14 . provides exceptions for lawful use of images;
15 . provides an exception for lawful practices and functions, including law enforcement
16 functions and medical procedures;
17 . provides an exemption for defined H. [ telecommunication services ] S. services,
17a1 including .S Internet service
17a providers and S. [ hosting companies ] interactive computer services .S .H ; and
18 . provides that distribution of an intimate image of an individual, as defined and
19 without that individual's permission, is H. a class A misdemeanor and any subsequent
19a convictions are .H a third degree felony.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 ENACTS:

26 76-5b-203 , Utah Code Annotated 1953
27
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 76-5b-203 is enacted to read:
30 76-5b-203. Distribution of an intimate image -- Penalty.
31 (1) As used in this section:
32 (a) "Distribute" means selling, exhibiting, displaying, wholesaling, retailing, providing,
33 giving, granting admission to, providing access to, or otherwise transferring or presenting an
34 image to another individual, with or without consideration.
35 (b) "Intimate image" means any visual depiction, photograph, film, video, recording,
36 picture, or computer or computer-generated image or picture, whether made or produced by
37 electronic, mechanical, or other means, that depicts:
38 (i) exposed human male or female genitals or pubic area, with less than an opaque
39 covering;
40 (ii) a female breast with less than an opaque covering, or any portion of the female
41 breast below the top of the areola; or
42 (iii) the individual engaged in any sexually explicit conduct.
43 (c) "Sexually explicit conduct" means actual or simulated:
44 (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
45 whether between persons of the same or opposite sex;
46 (ii) masturbation;
47 (iii) bestiality;
48 (iv) sadistic or masochistic activities;
49 (v) exhibition of the genitals, pubic region, buttocks, or female breast of any
50 individual;
51 (vi) visual depiction of nudity or partial nudity;
52 (vii) fondling or touching of the genitals, pubic region, buttocks, or female breast; or
53 (viii) explicit representation of the defecation or urination functions.
54 (d) "Simulated sexually explicit conduct" means a feigned or pretended act of sexually
55 explicit conduct that duplicates, within the perception of an average person, the appearance of
56 an actual act of sexually explicit conduct.

57 (2) An actor commits the offense of distribution of intimate images if the actor, with
58 the intent to cause H. [ severe ] .H emotional distress or harm, knowingly or intentionally
58a distributes to
59 any third party any intimate image of an individual who is 18 years of age or older, if:
60 (a) the actor knows that the depicted individual has not given consent to the actor to
61 distribute the intimate image;
62 (b) the intimate image was created by or provided to the actor under circumstances in
63 which the individual has a reasonable expectation of privacy; and
64 (c) actual H. emotional distress or .H harm is caused to the person H. [ and the harm is ]
64a as .H a result of the distribution under
65 this section.
66 (3) This section does not apply to:
67 (a) (i) lawful practices of law enforcement agencies;
68 (ii) prosecutorial agency functions;
69 (iii) the reporting of a criminal offense;
70 (iv) court proceedings or any other judicial proceeding; or
71 (v) lawful and generally accepted medical practices and procedures;
72 (b) an intimate image if the individual portrayed in the image voluntarily allows public
73 exposure of the image; or
74 (c) an intimate image that is portrayed in a lawful commercial setting.
75 H. [ (4) This section does not impose liability on an interactive computer service, as defined
76 in 47 U.S.C. Sec. 230(f)(2), an information service, as defined in 47 U.S.C. Sec. 153, or a
77 telecommunication service, as defined by Section 76-6-409.5 , for content that any of these
78 entities provide to another person. ]
78a S. [ (4) (a) This section does not apply to an Internet service provider, as defined in Section
78b 76-10-1230, if:
78c (i) the distribution of an intimate image by the Internet service provider occurs only
78d incidentally through the Internet service provider's function of:
78e (A) transmitting or routing data from one person to another person; or
78f (B) providing a connection between one person and another person;
78g (ii) the Internet service provider does not intentionally aid or abet in the distribution of
78h an intimate image; and
78i (iii) the Internet service provider does not knowingly receive funds from or through a
78j person who distributes an intimate image in exchange for permitting the person to.S

78k S.distribute an intimate image.
78l (b) This section does not apply to a hosting company, as defined in
78m Section 76-10-1230, if:
78n (i) the distribution of an intimate image by the hosting company occurs only
78o incidentally through the hosting company's function of providing data storage space or data
78p caching to a person;
78q (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
78r of an intimate image; and
78s (iii) the hosting company does not knowingly receive funds from or through a person
78t who distributes an intimate image in exchange for permitting the person to distribute, store, or
78u cache an intimate image. .H ] .S
79 S. (4) (a) This section does not apply to an Internet service provider S. or
79a1 interactive computer service .S , as defined in 47
79a U.S.C. Sec 230(f)(2) , a provider of an electronic communications service as defined in 18
79b U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as
79c defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C.
79d Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:
79e (i) the distribution of an intimate image by the Internet service provider occurs only
79f incidentally through the provider's function of:
79g (A) transmitting or routing data from one person to another person; or
79h (B) providing a connection between one person and another person;
79i (ii) the provider does not intentionally aid or abet in the distribution of the intimate
79j image; and
79k (iii) the provider does not knowingly receive from or through a person who distributes
79l the intimate image a fee greater than the fee generally charged by the provider, as a specific
79m condition for permitting the person to distribute the intimate image.
79n (b) This section does not apply to a hosting company, as defined in Section 76-10-1230,
79o if:
79p (i) the distribution of an intimate image by the hosting company occurs only
79q incidentally through the hosting company's function of providing data storage space or data
79r caching to a person;
79s (ii) the hosting company does not intentionally engage, aid, or abet in the distribution
79t of the intimate image; and
79u (iii) the hosting company does not knowingly receive from or through a person who
79v distributes the intimate image a fee greater than the fee generally charged by the provider, as
79w a specific condition for permitting the person to distribute, store, or cache the intimate image.

79x (c) A service provider, as defined in Section 76-10-1230, is not negligent under this
79y section if it complies with Section 76-10-1231. .S
79z (5) S. (a) .S Distribution of an intimate image is H. a class A misdemeanor
79a S. [ and ] except under Subsection (5)(b)
79b (b) Distribution of an intimate image is a third degree felony on .S S. [ upon ] .S a second
79a S. [ separate incident ] .S or subsequent conviction S. [ is ] .S .H S. for an offense under
79b this section that arises from a separate criminal episode as defined in Section 76-1-401 [ a third
79c degree felony ] .S .