ARIZONA HOUSE OF REPRESENTATIVES

Fifty-sixth Legislature

Second Regular Session

 

HB 2889: pornography; publication; consent; verification; violation

Sponsor: Representative Biasiucci, LD 30

Committee on Judiciary

Overview

Adds a new chapter to A.R.S. title 18 regulating the publication, access and removal of pornographic materials from certain internet platforms. 

History

A.R.S. title 18 relates to information technology, including chapters on government information technology; governmental reporting of information; the property technology sandbox; and network access, services and security.

Provisions

Definitions

1.   Defines certain terms as follows:

a)   covered platform means defined as an interactive computer service that hosts or makes available to the general public pornographic images (for purposes of this definition, the availability of pornographic images to a group of subscribers is considered available to the general public if any member of the general public, subject to reasonable limitations, can obtain a subscription);

b)   covered platform operator means a provider of a covered platform;

c) information content provider means any person or entity that is responsible, in whole or in part, for creating or developing information provided through the internet or any other interactive computer service; and

d)   user means an individual who is an information content provider or, with respect to a covered platform, an individual who is an information content provider who is responsible, in whole or in part, for creating or developing pornographic images hosted or made available by the covered platform. (Sec. 1)

2.   Provides definitions for the following additional terms:

a)   authorized representative;

b)   coerced consent;

c) computer;

d)   consent;

e)   eligible person;

f) interactive computer service;

g)   intimate visual depiction;

h)   pornographic image;

i) sexually explicit conduct; and

j) visual depiction;

 

 

Access and Posting of Pornographic Materials

3.   ☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal NoteProhibits a covered platform operator (Operator) from uploading or allowing a user to upload a pornographic image to the covered platform unless the Operator has verified both the identity of the user and that the user is at least 18 years old by any of the following methods:

a)   requiring use of an adult access code or adult personal identification number;

b)   accepting a digital certificate that verifies the user's age; or

c) using any other reasonable measure of age verification that the Arizona Attorney General (AG) has determined to be feasible with available technology. (Sec. 1)

4.   Specifies that an Operator that only requires a user to confirm that the user is at least 18 years old, without independent means of verification, does not satisfy the age verification requirement prescribed above. (Sec. 1)

5.   Proscribes an Operator from uploading or allowing a user to upload a pornographic image to the covered platform unless the covered platform has verified, in accordance with the methods enumerated above, that each individual appearing in the pornographic image:

a)   was at least 18 years old when the pornographic image was created or developed;

b)   has provided explicit written evidence of consent for each sex act in which the individual engaged during the creation or development of the pornographic image;

c) has provided explicit written consent for the distribution of the specific pornographic image. (Sec. 1)

6.   Clarifies that the consent required in paragraph b) under provision 3 above does not imply or constitute evidence of consent prescribed in paragraph c) under provision 3 above, and vice versa. (Sec. 1)

7.   Requires an Operator to obtain, either from the user seeking to upload the pornographic image or through other means, both of the following when carrying out the identity and age verification requirements above:

a)   a consent form developed or approved by the AG from each individual appearing in the pornographic image that includes several specific items enumerated in the bill; and

b)   at least one form of valid identification for each individual appearing in the pornographic image:

i) that was issued by an agency of the U.S. or of a state, local or foreign government and that contains the name, birthday, signature and photograph of the individual; and

ii)   on which the name, birthday and signature of the individual match the name, birthday and signature of the individual on the consent form described above. (Sec. 1)

8.   Instructs the AG to develop and make available to the public a consent form that complies with the requirements explained above and requires an Operator to make the consent form available to users in both written and electronic formats. (Sec. 1)

9.   Allows a user to submit to an Operator an alternative consent form that is created by a user or Operator if the form has been approved by the AG. (Sec. 1)

 

Removal of Pornographic Materials

10.  Requires an Operator to establish a procedure for removing a pornographic image from the covered platform at the request of a person and designate one or more of its employees to be responsible for handling removal requests. (Sec. 1)

11.  Instructs an Operator to display a prominently visible notice on the website or mobile application of the covered platform that provides instructions on how a person can request the removal of a pornographic image. (Sec. 1)

12.  If an Operator receives a request to remove a pornographic image from an eligible person, mandates that an Operator remove a pornographic image as soon as practicable but no later than 72 hours after receiving the request. (Sec. 1)

13.  If an Operator receives a request to remove a pornographic image from someone other than an eligible person, instructs the Operator to do the following within 72 hours after receiving the request in order to remove a pornographic image that is being hosted by the covered platform without the consent of an individual who appears in the pornographic image:

a)   review the Operator's records with respect to the pornographic image to determine whether it was uploaded to the covered platform in accordance with the age verification requirements prescribed above; and

b)   if the covered platform operator determines that the pornographic image was not uploaded in accordance with those requirements, remove the image. (Sec. 1)

14.  Requires an Operator to block a pornographic image that has been removed pursuant to the above processes along with any altered or edited version of the pornographic image from being uploaded to the covered platform again. (Sec. 1)

User Consent Requirements

15.  Prohibits a user from uploading a pornographic image of an individual to the covered platform without the individual's consent and stipulates that the question of whether an individual has provided such consent must be determined in accordance with this new chapter and other applicable law. (Sec. 1)

Enforcement

16.  Authorizes the AG to impose civil penalties against an Operator for violations of certain of the above requirements. (Sec. 1)

17.  Permits a person aggravated by violations of certain of the above requirements to bring a civil action against an Operator for the greater of either the person's actual damages or $10,000 for each day during which the violative pornographic image remains on the covered platform. (Sec. 1)

18.  For certain violations, deems an Operator not liable if, in allowing the upload of a pornographic image, the Operator reasonably relied on verification materials in accordance with the above requirements that were later found to be fraudulent and the Operator removes the image within 24 hours after discovering that the verification materials are fraudulent (and begins the counting of days for purposes of damages to begin after this 24-hour period expires if the Operator fails to remove the image during that period). (Sec. 1)

 

 

Unlawful Publishing of Intimate Visual Depictions

19.  Makes it a criminal offense for an information content provider to knowingly use any interactive computer service to publish an intimate visual depiction of an individual with knowledge of or reckless disregard for both of the following:

a)   the lack of consent of the individual to the publication; and

b)   the reasonable expectation of the individual that the intimate visual depiction would not be published through an interactive computer service without the individual's consent. (Sec. 1)

20.  Classifies this offense as a class 4 felony and additionally requires a maximum fine of $10,000, notwithstanding A.R.S. § 13-801. (Sec. 1)

21.  Specifies that the provision prescribing this offense does not do any of the following:

a)   prohibit any lawful law enforcement, correctional or intelligence activity;

b)   apply to an individual acting in good faith to report unlawful activity or in pursuance of a legal or other lawful obligation; or

c) apply to a document production or filing associated with a legal proceeding. (Sec. 1)

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