REFERENCE TITLE: obscenity; human trafficking; prostitution; prevention
State of Arizona
Second Regular Session
Senators Dalessandro: Bradley, Gonzales, Otondo, Steele
amending title 41, chapter 1, article 5, Arizona Revised Statutes, by adding section 41-191.12; amending title 44, Arizona Revised Statutes, by adding chapter 38; relating to human trafficking.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 41, chapter 1, article 5, Arizona Revised Statutes, is amended by adding section 41-191.12, to read:
41-191.12. Human trafficking and child exploitation prevention grant fund; report
A. The human trafficking and child exploitation prevention grant fund is established consisting of monies received pursuant to title 44, chapter 38 and monies available to the fund from any other source. The attorney general or the attorney general's designee shall administer the fund and may accept private grants, gifts, contributions and devises to be used for the purposes of this section. Monies in the fund are continuously appropriated.
B. The monies in the fund shall be used for the following purposes, which may be construed broadly to meet the evolving needs of this state:
1. To promote the development throughout this state of locally based and supported nonprofit programs for the survivors of sexual-related offenses and to support the quality of services provided.
2. To empower any government and, especially, nongovernment groups working to uphold community standards of decency, to protect children, to strengthen families or to develop, expand, prevent or offset the costs of sexual-related offenses.
3. To maximize human flourishing and to protect the public's safety, health and welfare and not to promote a culture of perpetual victimhood.
C. The attorney general or the attorney general's designee shall use the monies in the human trafficking and child exploitation prevention grant fund only To award grants to government and nongovernment groups and individuals that are working to uphold community standards of decency, to protect children, to strengthen families or to develop, expand or strengthen programs for victims of human trafficking or child exploitation, including providing grants for:
1. The needs of the Arizona human trafficking council, the human exploitation and trafficking unit, child welfare project coordinator and human trafficking project coordinator.
2. The needs of the department of child safety and other similar departments.
3. The needs of victim compensation.
4. Services to help women with substance abuse problems stay sober.
5. Counselors and victim advocates who are trained to assist victims of domestic violence and sexual abuse.
6. Shelters for women, particularly those who have been exposed to prostitution or sex trafficking.
7. Research-based organizations.
8. Faith-based organizations that work to uphold community standards of decency and assist victims of human trafficking or other sexual-related offenses.
9. Child advocacy centers.
10. Organizations that provide legal advocacy to abused, neglected and at-risk children.
11. Physical and mental health services.
12. Temporary and permanent housing placement.
13. Employment, placement, education and training.
14. Independent school districts.
15. Family counseling and therapy.
16. Law enforcement.
17. Musical, writing, design, cinematic or pictorial creative art projects that promote decency.
18. Regional nonprofit providers of civil legal services to provide legal assistance for sexual assault victims.
19. Technology in rape crisis centers.
20. Sexual violence awareness and prevention campaigns.
21. Scholarships for students demonstrating outstanding character or leadership skills.
22. Either conducting human trafficking enforcement programs or upholding community standards of decency.
D. Notwithstanding any other law, interest accruing on investments of the fund shall be credited to the fund. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations.
E. The attorney general or the attorney general's designee may by rule:
1. Determine eligibility requirements for any grant awarded under this section.
2. Require a grant recipient to offer minimum services for a period of time before receiving a grant and to continue to offer minimum services during the grant period.
3. Require a grant recipient to submit financial and programmatic reports.
F. The attorney general or the attorney general's designee may not spend more than ten percent of the available monies on the administration of the fund.
G. The attorney general or the attorney general's designee shall evaluate activities conducted under this section each year and, on or before February 15, submit an annual report containing the evaluation to the governor, the president of the senate and the speaker of the house of representatives and provide a copy of this report to the secretary of state. The report must include:
1. The amount of filter deactivation fees received under section 44-7922.
2. The amount of admission fees received under section 44-7926, subsection A.
3. The manner in which the monies in the fund are distributed.
Sec. 2. Title 44, Arizona Revised Statutes, is amended by adding chapter 38, to read:
ARTICLE 1. GENERAL PROVISIONS
In this chapter, unless the context otherwise requires:
1. "Adult" has the same meaning prescribed in section 8-101.
2. "Adult live entertainment establishment" has the same meaning prescribed in section 11-811.
3. "Cellular telephone" means a communication device containing a unique electronic serial number that is programmed into its computer chip by its manufacturer and whose operation is dependent on the transmission of that electronic serial number and mobile identification number that is assigned by the cellular telephone carrier, in the form of radio signals through cell sites and mobile switching stations.
4. "Child pornography" has the same meaning prescribed in 18 United States Code section 2256.
5. "Computer" has the same meaning prescribed in 18 united states Code section 1030.
6. "Data communications device" means an electronic device that receives electronic information from one source and that transmits or routes it to another, including any bridge, router, switch or gateway.
7. "Filter" means both:
(a) A digital blocking capability, hardware or software that restricts or blocks internet access to websites, email, chat or other internet-based communications based on category, site or content.
(b) A digital blinder rack that can be deactivated by a retailer on the satisfaction of certain nominal conditions.
8. "Harmful to minors" has the same meaning prescribed in section 13-3501.
9. "Human trafficking" means sex trafficking.
10. "Internet" has the same meaning prescribed in 31 united States code section 5362.
11. "Internet-enabled device" means a cellular telephone, computer, data communications device or other product that is manufactured, distributed or sold in this state and that provides internet access or plays a material role in distributing content on the internet.
12. "Internet service provider":
(a) Means a person engaged in the business of providing a computer and communications facility through which a consumer may obtain access to the internet.
(b) Does not include a common carrier if it provides only telecommunications service.
13. "Minor" means a person who is under eighteen years of age.
14. "Obscene material":
(a) Means content that:
(i) The average individual applying contemporary community standards, when considered or taken as a whole, would find appeals to the prurient interest.
(ii) Depicts or describes sexual activity in a patently offensive way by audio or visual representations.
(iii) When considered or taken as a whole, lacks serious literary, artistic, political or scientific value.
(b) Includes websites that both:
(i) Are known to facilitate human trafficking or prostitution.
(ii) Display or depict images that are harmful to minors or that constitute sexual activity, sexual intercourse, sadomasochistic abuse, sexual conduct or revenge pornography.
15. "Personal identification information" means any information that identifies a person, including an individual's photograph, social security number, driver license number, name, email address, address or telephone number.
16. "Political speech":
(a) Means speech relating to the state, government or public administration as it relates to governmental policy making.
(b) Includes speech by the government or candidates for office and any discussion of social issues.
17. "Prostitution" has the same meaning prescribed in section 13‑3211.
18. "Religious speech" means a set of unproven answers, truth claims, faith-based assumptions and assertions that attempt to explain greater questions as how the world was created, what constitutes right and wrong actions by humans and what happens after death.
(a) means any person who regularly engages in manufacturing, selling, offering for sale or leasing internet-enabled devices or services in this state that make content accessible on the internet.
(b) Includes internet service providers and suppliers and manufacturers of internet-enabled devices that materially play a role in distributing content on the internet or that make content accessible and that are subject to the jurisdiction of this state.
20. "Revenge pornography" means an image that displays an individual who is engaged in sexual activity or a specified anatomical area if the image contains or conveys the personal identification information of the depicted individual to an internet website without the depicted individual's consent.
21. "Sadomasochistic abuse" has the same meaning prescribed in section 13-3211.
22. "Sex trafficking" means conduct that constitutes an offense under section 13‑1307.
23. "Sexual activity" has the same meaning prescribed in section 13-3501.
24. "Sexual conduct" has the same meaning prescribed in section 13‑3211.
25. "Sexual intercourse" has the same meaning prescribed in section 13-3211.
26. "Social media website" means an internet website or application that enables users to communicate with each other by posting information, comments, messages or images and that meets all of the following requirements:
(a) Is open to the public.
(b) Has more than seventy-five million subscribers.
(c) From its inception, has not been specifically affiliated with any one religion or political party.
44-7922. Retailers of internet-enabled devices; duties
A. A retailer that manufactures, sells, offers for sale, leases or distributes an internet-enabled device shall do all of the following:
1. Ensure that the product is equipped with an active and operating filter before sale that blocks by default websites that both:
(a) Are known to facilitate human trafficking or prostitution.
(b) Display child pornography, revenge pornography or obscene material that is harmful to minors.
2. Make reasonable and ongoing efforts to ensure that a product's filter functions properly.
3. Establish a reporting mechanism, such as a website or call center, to allow a consumer to report unblocked websites displaying content described in this subsection or to report blocked websites that are not displaying content described in this subsection.
4. Report child pornography received through the reporting mechanism to the national center for missing and exploited children's CyberTipline in accordance with 18 United States Code section 2258a.
5. Not block access to websites that:
(a) Are social media websites and that provide a means for the website's users to report obscene materials and have in place procedures for evaluating those reports and removing obscene material.
(b) Serve primarily as a search engine.
(c) Display complete movies that meet the qualifications for a "g", "pg", "pg-13" or "r" rating by the classification and ratings administration, as those qualifications exist on September 1, 2020.
B. Except as otherwise provided, a retailer may not provide to a consumer methods, source codes or other operating instructions for deactivating a product's filter.
C. A retailer of an internet-enabled device shall deactivate the filter after a consumer does all of the following:
1. Requests that the capability be disabled.
2. Presents personal identification information to verify that the consumer is eighteen years of age or older.
3. Acknowledges receiving a warning regarding the potential danger of deactivating the filter.
4. Pays a onetime $20 digital filter deactivation fee to be remitted quarterly to the department of revenue for deposit in the human trafficking and child exploitation prevention grant fund established by section 41-191.12.
D. The filter deactivation fee described in subsection C of this section is not content based but shall be collected and remitted to the department of revenue to help this state bear the costs of upholding community standards of decency and of combating sexual-related offenses. The department of revenue shall prescribe by rule the administration, payment, collection and enforcement of this fee. The department of revenue may annually adjust the fee to account for inflation.
E. This chapter does not prevent a retailer of an internet-enabled device from charging a reasonable and separate fee to deactivate the filter, which the retailer may retain for profit.
F. The attorney general shall prepare and make available to retailers a form that includes all content that must be in the warning described in subsection C of this section.
G. This chapter does not require a retailer of an internet-enabled device to create a database or registry that contains the names or personal identification information of adults who knowingly chose to deactivate a product's filter. A retailer of an internet-enabled device shall take due care to protect the privacy rights of adult consumers under this chapter and may not disclose the names or personal identification information of an adult consumer who decides to deactivate a product's filter.
44-7923. Indecent deceptive trade practice; civil action; affirmative defense
A. If a product's filter blocks a website that is not displaying content described in section 44-7922, subsection A and the block is reported to a call center or reporting mechanism established pursuant to section 44-7922, subsection A, paragraph 3, the website shall be unblocked within a reasonable time but not later than five business days after the block is first reported. A consumer may seek judicial relief to unblock a website that was wrongfully blocked by the filter. The prevailing party in a civil action may seek attorney fees, costs and other forms of relief.
B. If a retailer of an internet-enabled device is unresponsive to a report made pursuant to section 44-7922, subsection A, paragraph 3, the attorney general or a consumer may file a civil action. The attorney general or a consumer may seek damages of up to $500 for each website that was reported but not subsequently blocked. The prevailing party in the civil action may seek attorney fees, costs and other forms of relief.
C. A retailer of an internet-enabled device that fails to comply with a duty described in subsection A or B of this section has engaged in an unfair and deceptive practice in violation of section 44-1522 and is subject to the remedies described in section 44-1528.
D. Only the attorney general can enforce subsection C of this section.
E. It is an affirmative defense in a civil action to a charge of violating this chapter that the dissemination of the content described in section 44-7922, subsection A was limited to institutions or organizations having scientific, educational or other similar justifications for displaying the material.
44-7924. Unlawful practices; penalties; violation; classification
A. It is an unlawful practice pursuant to section 44‑1522 for a retailer of an internet-enabled device to knowingly:
1. Sell an internet-enabled device without activated blocking capability that at least makes an attempt to block by default websites that display content described in section 44-7922, subsection A.
2. Violate section 44-7922, subsection B.
3. Fail to comply with the requirements of section 44-7922, subsection C before deactivating a product's filter.
4. Disclose to a third party the name or the personal identification information of adult consumers who have elected to deactivate a product's filter in violation of section 44-7922, subsection G without a court order directing otherwise.
B. A retailer is subject to a civil penalty of not more than $1,000 for a first offense and $2,500 for any subsequent offense.
C. A retailer that has been subject to two civil penalties and that commits an additional offense under subsection A of this section is guilty of a class 3 misdemeanor. A retailer that has been convicted of three prior offenses under subsection A of this section and that commits an offense under subsection A of this section is guilty of a class 2 Misdemeanor.
D. The attorney general may investigate and take appropriate action as prescribed by chapter 10, article 7 of this title.
E. Only the attorney general or county attorney may enforce this section.
This chapter does not apply to:
1. An occasional sale of an internet-enabled device by a person that is not regularly engaged in the trade business of selling internet‑enabled devices.
2. Products that are produced or sold before the effective date of this section.
3. Independent third-party routers that are not affiliated with an internet service provider.
4. A retailer of internet-enabled devices that is not subject to the jurisdiction of this state.
44-7926. Adult live entertainment establishment admission fee
A. Each customer admitted to an adult live entertainment establishment shall pay a $5 admission fee for each entry. The fee shall be remitted quarterly to the department of revenue and deposited into the human trafficking and child exploitation prevention grant fund established by section 41-191.12. The department of revenue shall prescribe the method of administration, payment, collection and enforcement of the fee imposed by this section.
B. The admission fee is not content based but imposed and remitted to the state to offset secondary harmful effects and to help the state uphold community standards of decency and to combat sexual-related crimes and is to be used as described in section 41‑191.12.
C. The admission fee is in addition to all other taxes imposed on the business that offers adult entertainment.
D. Each adult live entertainment establishment shall record daily in the manner required by the department of revenue the number of customers admitted to the business. The business shall maintain the records for the period required by the department of revenue and make the records available only for inspection and audit on request by the department of revenue. The records may not contain the names or personal information of any of the customers.
E. This section does not require an adult live entertainment establishment to impose a tax on a customer of the business. A business has the discretion to determine the manner in which the business derives the money required to pay the fee imposed under this section.
This chapter applies to a retailer that manufactures, sells, offers for sale, leases or distributes internet‑enabled devices, adult live entertainment establishments and social media websites that censor users for political speech or religious speech beginning from and after the effective date of this section.
Sec. 3. Short title
This act may be cited as the "Human Trafficking and Child Exploitation Prevention Act".
Sec. 4. Requirements for enactment; two-thirds vote
Pursuant to article IX, section 22, Constitution of Arizona, this act is effective only on the affirmative vote of at least two-thirds of the members of each house of the legislature and is effective immediately on the signature of the governor or, if the governor vetoes this act, on the subsequent affirmative vote of at least three-fourths of the members of each house of the legislature.