HB2133 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-1425, Arizona Revised Statutes, is amended to read:

START_STATUTE13-1425. Unlawful disclosure of images depicting states of nudity or specific sexual activities; classification; definitions

A. It is unlawful for a person to intentionally disclose an image of another person who is identifiable from the image itself or from information displayed in connection with the image if all of the following apply:

1. The person in the image is depicted in a state of nudity or is engaged in specific sexual activities.

2. The depicted person has a reasonable expectation of privacy. Evidence that a person has sent an image to another person using an electronic device does not, on its own, remove the person's reasonable expectation of privacy for that image. Unless the realistic pictorial representation is created or modified by the depicted person, this paragraph does not apply to an image that is a realistic pictorial representation.

3. The image is disclosed with the intent to harm, harass, intimidate, threaten or coerce the depicted person.

B. This section does not apply to any of the following:

1. The reporting of unlawful conduct.

2. Lawful and common practices of law enforcement, criminal reporting, legal proceedings or medical treatment.

3. Images involving voluntary exposure in a public or commercial setting.

4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service or cable service, as defined in 47 United States Code section 153, with regard to content wholly provided by another party.

5. Any disclosure that is made with the consent of the person who is depicted in the image.

C. A violation of this section is a class 5 felony, except that a violation of this section is a:

1. Class 4 felony if the image is disclosed by electronic means.

2. Class 1 misdemeanor if a person threatens to disclose but does not disclose an image that if disclosed would be a violation of this section or if the image is a realistic pictorial representation.

D. For the purposes of this section:

1. "Disclose" means display, distribute, publish, advertise or offer.

2. "Disclosed by electronic means" means delivery to an email address, mobile device, tablet or other electronic device and includes disclosure on a website.

3. "Harm" means physical injury, financial injury or serious emotional distress.

4. "Identifiable individual" means a person who is recognizable by any person, including the person themself, by any part of the person or by any other information that is part of the depiction.

4. 5. "Image" means a photograph, videotape, film, digital recording, or realistic pictorial representation or synthetic depiction of an identifiable individual.

5. 6. "Realistic pictorial representation":

(a) Means an image that is created or modified to reasonably appear to be an actual image of an identifiable person depicted in a state of nudity or engaged in specific sexual activities that did not actually occur.

(b) Does not include an image made in the public interest, including scientific or educational activities, a newsworthy event or an issue of public concern.

6. 7. "Reasonable expectation of privacy" means the person exhibits an actual expectation of privacy and the expectation is reasonable.

7. 8. "Specific sexual activities" has the same meaning prescribed in section 11-811, subsection E, paragraph 18, subdivisions (a) and (b).

8. 9. "State of nudity" has the same meaning prescribed in section 11-811, subsection E, paragraph 14, subdivision (a).

10. "Synthetic depiction" means any visual depiction that is created or altered through the use of artificial intelligence, digital manipulation or other technology and that appears to depict an identifiable individual but that does not represent an actual event or conduct involving that individual. END_STATUTE

Sec. 2. Heading change; transfer and renumber

A. The chapter heading of title 18, chapter 7, Arizona Revised Statutes, is changed from "government information technology use" to "sexual material on the internet".

B. Title 18, chapter 7, Arizona Revised Statutes, is transferred and renumbered for placement in title 44, Arizona Revised Statutes, as chapter 30. Title 18, chapter 7, article 1, Arizona Revised Statutes, is transferred and renumbered for placement in title 44, chapter 30, Arizona Revised Statutes, as article 1. Section 18-701, Arizona Revised Statutes, is transferred and renumbered for placement in title 44, chapter 30, article 1, Arizona Revised Statutes, as section 44-7301.

Sec. 3. Title 44, chapter 30, article 1, Arizona Revised Statutes, as transferred and renumbered, is amended by adding section 44-7302, to read:

START_STATUTE44-7302. Sexual material on the internet; verification and consent requirements; records; applicability; civil penalties; definitions

A. A commercial entity that knowingly and intentionally publishes or distributes, or allows the publication or distribution of, sexual material on an internet website shall do all of the following:

1. Require each person who uploads or places the sexual material on an internet website to verify, using reasonable consent verification methods, that each individual who is depicted in the sexual material:

(a) Has provided explicit informed consent to the creation, distribution and publication of the sexual material.

(b) Was at least eighteen years of age at the time the material was created.

2. Maintain records of the verification for at least seven years. On request, the attorney general may inspect the records.

3. Implement reasonable measures to prevent the uploading of sexual material that does not have verified consent, including using automated detection tools where feasible.

B. A commercial entity may not retain any identifying information of the depicted person after the verification is complete except as required for the recordkeeping requirements prescribed in this section. The commercial entity may not cause or allow any identifying information to be transmitted to any federal, state or local government entity.

C. This section does not apply to any of the following:

1. A news or public interest broadcast or publication.

2. Material that is distributed for bona fide scientific, medical or educational purposes.

3. An internet service provider, an internet service provider's affiliates or subsidiaries, a search engine or a cloud service provider that solely provides access or a connection to or from a website or other information or content on the internet or on a facility, system or network that is not under that internet service provider's control, including transmission, downloading, intermediate storage, access software or other services to the extent that the internet service provider, search engine or cloud service provider is not responsible for the creation or direct hosting of the sexual material.

D. A commercial entity that publishes or distributes sexual material on an internet website without obtaining verified consent from a depicted individual in violation of this section is subject to:

1. A civil penalty of $10,000 for each day of the violation.

2. Actual damages.

3. Costs and reasonable attorney fees.

4. Additional relief, including injunctive relief.

E. The attorney general may bring an action to enforce this section and, in addition to any penalty provided for in section 13-3553, may seek civil penalties of up to $250,000 if a minor is depicted in the sexual material that is published or distributed in violation of this section.

F. The following persons may bring a civil action pursuant to this section:

1. The attorney general.

2. An individual who is depicted in the sexual material and who did not consent to the depiction.

G. For the purposes of this section:

1. "Commercial entity" has the same meaning prescribed in section 44-7301.

2. "Consent" means affirmative, conscious and voluntary authorization that is given by an individual and that is documented and verifiable.

3. "Direct hosting":

(a) Means storing sexual material on servers, systems or networks that are controlled or operated by the commercial entity where the commercial entity enables users to upload the material and makes the material accessible for viewing, downloading, sharing or distribution by other uses or the public through the entity's website, application or platform.

(b) Does not include any of the following:

(i) Transitory digital network COMMUNICATIONS or the mere provision of internet connectivity or access.

(ii) System caching or intermediate storage that is incidental to transmission.

(iii) Information location tools, including search engines, that only index, link to or reference content that is hosted by a third party without storing the material on the commercial entity's controlled systems.

4. "Distribute" has the same meaning prescribed in section 44-7301.

5. "Identifiable individual" means a person who is recognizable by any person, including the person themself, by any part of the person or by any other information that is part of the depiction.

6. "Publish" has the same meaning prescribed in section 44-7301.

7. "Reasonable consent verification methods":

(a) Means any commercially reasonable method that is regularly used by businesses to verify consent, without requiring or allowing the use of any government-issued digital identification system.

(b) Includes:

(i) An affidavit that attests to the consent and age of each depicted person.

(ii) A verification through an independent third party.

(iii) Any other commercially reasonable method that does not retain identifying information after the verification is complete.

8. "Sexual material" includes:

(a) Sexual material that is harmful to minors as defined in section 44-7301.

(b) A synthetic depiction involving sexual material of an identifiable individual.

9. "Synthetic depiction" means any visual depiction that is created or altered through the use of artificial intelligence, digital manipulation or other technology and that appears to depict an identifiable individual but that does not represent an actual event or conduct involving that individual. END_STATUTE

Sec. 4. Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

Sec. 5. Short title

This act may be cited as the "Protect Act".