GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 907

Short Title:  Limit Child's Access/Computer Porn.	(Public)

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Sponsors: Senators Cooper; Hoyle, Kerr, Perdue, Rand, and Reeves.

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Referred to:  Judiciary I.

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April 14, 1999

A BILL TO BE ENTITLED
AN ACT TO PROHIBIT THE DISSEMINATION OF OBSCENITIES BY COMPUTER TRANSMISSION, TO PROHIBIT THE USE OF STATE COMPUTERS TO ACCESS OBSCENITIES, TO REGULATE CERTAIN USES OF STATE COMPUTERS, AND TO REQUIRE THE INSTALLATION OF APPROPRIATE SOFTWARE ON CERTAIN COMPUTERS ACCESSIBLE TO THE PUBLIC OR THE USE OF OTHER APPROPRIATE MANAGEMENT SCHEMES TO SHIELD MINORS FROM OBSCENITIES TRANSMITTED BY COMPUTER. 
The General Assembly of North Carolina enacts:
Section 1.  G.S. 14-190.1(a) reads as rewritten:
"§ 14-190.1.  Obscene literature and exhibitions.
(a)	It is unlawful for any person to intentionally disseminate obscenity.  A person disseminates obscenity within the meaning of this Article if the person:
(1)	Sells, delivers, makes accessible to another person by computer, or provides or offers or agrees to sell, deliver, make accessible to another person by computer, or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
(2)	Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3)	Publishes, exhibits or otherwise makes available anything obscene; or
(4)	Exhibits, presents, rents, sells, delivers or provides; or offers or agrees to exhibit, present, rent or to provide: any obscene still or motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever form which is a representation, embodiment, performance, or publication of the obscene.
(b)	For purposes of this Article any material is obscene if:
(1)	The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and
(2)	The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
(3)	The material lacks serious literary, artistic, political, or scientific value; and
(4)	The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.
(c)	As used in this Article, "sexual conduct"means:
(1)	Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or
(2)	Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or
(3)	An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
(d)	Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences.
(e)	It is unlawful for any person to knowingly and intentionally create, buy, procure or possess obscene material with the purpose and intent of disseminating it unlawfully.
(f)	It is unlawful for a person to advertise or otherwise promote the sale of material represented or held out by the person as obscene.
(g)	Violation of this section is a Class I felony.
(h)	Obscene material disseminated, procured, or promoted in violation of this section is contraband.
(i)	Nothing in this section shall be deemed to preempt local government regulation of the location or operation of sexually oriented businesses to the extent consistent with the constitutional protection afforded free speech.
(j)	For purposes of this Article, the term "person"means an individual, a firm, a partnership, an association, a corporation, or any other organization or group acting as a unit."
Section 2.  G.S. 14-190.8 reads as rewritten: 
"§ 14-190.8.  Dissemination to minors under the age of 13 years.
Every person 18 years of age or older who knowingly disseminates to any minor under the age of 13 years any material which the person knows or reasonably should know to be obscene within the meaning of G.S. 14-190.1 shall be punished as a Class H felon."
Section 3.  G.S. 14-190.13 reads as rewritten:
"§ 14-190.13.  Definitions for certain offenses concerning minors.
The following definitions apply to G.S. 14-190.14, displaying material harmful to minors; G.S. 14-190.14A, allowing computer access to material harmful to minors; G.S. 14-190.15, disseminating or exhibiting to minors harmful material or performances; G.S. 14-190.16, first degree sexual exploitation of a minor; G.S. 14-190.17, second degree sexual exploitation of a minor; G.S. 14-190.17A, third degree sexual exploitation of a minor; G.S. 14-190.18, promoting prostitution of a minor; G.S. 14-190.19, participating in prostitution of a minor; and G.S. 14-202.6, protection for 'Good Samaritan' blocking screening of offensive material.
(1)	Harmful to Minors. – That quality of any material or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics:
a.	The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest of minors in sex; and
b.	The average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors; and
c.	The material or performance lacks serious literary, artistic, political, or scientific value for minors.
(2)	Material. – Pictures, drawings, video recordings, films, digital images made accessible to another person by computer, or other visual depictions or representations but not material consisting entirely of written words.
(3)	Minor. – An individual who is less than 18 years old and is not married or judicially emancipated.
(4)	Prostitution. – Engaging or offering to engage in sexual activity with or for another in exchange for anything of value.
(5)	Sexual Activity. – Any of the following acts:
a.	Masturbation, whether done alone or with another human or an animal.
b.	Vaginal, anal, or oral intercourse, whether done with another human or with an animal.
c.	Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.
d.	An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in revealing or bizarre costume.
e.	Excretory functions; provided, however, that this sub-subdivision shall not apply to G.S. 14-190.17A.
f.	The insertion of any part of a person's body, other than the male sexual organ, or of any object into another person's anus or vagina, except when done as part of a recognized medical procedure.
(6)	Sexually Explicit Nudity. – The showing of:
a.	Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast, except as provided in G.S. 14-190.9(b); or
b.	Covered human male genitals in a discernibly turgid state."
Section 4.  G.S. 14-190.15 reads as rewritten:
"§ 14-190.15.  Disseminating harmful material to minors; exhibiting harmful performances to minors.
(a)	Disseminating Harmful Material. – A person commits the offense of disseminating harmful material to minors if, with or without consideration and knowing the character or content of the material, the person:
(1)	Sells, furnishes, presents, makes accessible by computer, or distributes to a minor material that is harmful to minors; or
(2)	Allows a minor to review, peruse, or access by computer material that is harmful to minors.
(b)	Exhibiting Harmful Performance. – A person commits the offense of exhibiting a harmful performance to a minor if, with or without consideration and knowing the character or content of the performance, the person allows a minor to view a live performance that is harmful to minors.
(c)	Defenses. – Except as provided in subdivision (3), a mistake of age is not a defense to a prosecution under this section.  It is an affirmative defense to a prosecution under this section that:
(1)	The defendant was a parent or legal guardian of the minor.
(2)	The defendant was a school, church, museum, public library, governmental agency, medical clinic, or hospital carrying out its legitimate function; or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of the person's employment.
(3)	Before disseminating or exhibiting the harmful material or performance, the defendant requested and received a drivers license, student identification card, or other official governmental or educational identification card or paper indicating that the minor to whom the material or performance was disseminated or exhibited was at least 18 years old, and the defendant reasonably believed the minor was at least 18 years old.
(3a)	The material made accessible to another person by computer:
a.	Included on the first page of the text set out from surrounding written or graphical material so as to be conspicuous the following statement: 'Warning:  Viewer discretion and parental guidance is advised.  These materials may be harmful to minors.'; and
b.	Is located at a registered web site with a domain address assigned only to adult-oriented sites in compliance with the policies established by the Internet Corporation for Assigned Names and Numbers (ICANN), the United States Department of Commerce, or any other entity approved by the federal government to assign domain names.
(4)	The dissemination was made with the prior consent of a parent or guardian of the recipient.
(d)	Punishment. – Violation of this section is a Class 1 misdemeanor."
Section 5.  Article 26 of Chapter 14 of the General Statutes is amended by adding the following new section to read:
"§ 14-190.14A.  Allowing computer access to material harmful to minors.
(a)	Offense. – A person commits the offense of allowing computer access to material that is harmful to minors if:
(1)	The person has custody, control, or supervision of a computer in a public or commercial location;
(2)	The computer is accessible to minors as part of the invited general public; and
(3)	The person knowingly allows a minor to access material that is harmful to minors on that computer, knowing the character or content of the material.
(b)	Defenses. – Except as provided in subdivisions (3) and (4) of this subsection, a mistake of age is not a defense to a prosecution under this section.  It is an affirmative defense to a prosecution under this section that:
(1)	The defendant was a parent or legal guardian of the minor.
(2)	The defendant was a school, church, museum, public library, governmental agency, medical clinic, or hospital carrying out its legitimate function; or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of the person's employment.
(3)	Before allowing the minor to access by computer the harmful material, the defendant requested and received a drivers license, student identification card, or other official governmental or educational identification card or paper indicating that the minor to whom the material or performance was disseminated or exhibited was at least 18 years old, and the defendant reasonably believed the minor was at least 18 years old.
(4)	The dissemination was made with the prior consent of a parent or guardian of the recipient.
(c)	Punishment. – Violation of this section is a Class 1 misdemeanor."
Section 6.  Article 26 of Chapter 14 of the General Statutes is amended by adding the following sections:
"§ 14-202.4.  Unlawful to access or disseminate obscenities on a governmental computer.
(a)	Except to the extent required in conjunction with a bona fide, government-approved research project or other government-approved undertaking, no person shall utilize a government computer to access, download, print, or store any information infrastructure files or services having obscene content.  The approval for the research project or undertaking shall be in writing and signed by the appropriate governmental official.  Any such approval shall be a public record available to the public as provided by Chapter 132 of the General Statutes.
(b)	A violation of this section is a Class 1 misdemeanor.  A violation of this section is also grounds for disciplinary action under Chapter 126 of the General Statutes.
(c)	The following definitions apply in this section:
(1)	'Computer' includes all of the following terms as those terms are defined in G.S. 14-453:  computer, computer network, computer program, computer software, computer system, and data.
(2)	'Government' means the State of North Carolina or any agency or political subdivision of the State.
(3)	'Government computer' means a computer used for government purposes that is owned or leased in  whole or in part or otherwise under the control and general management of, the State or any agency or political subdivision of the State.
"§ 14-202.5.  Internet service provider shall provide software or services to block or screen obscene material or material that is harmful to minors; civil penalty.
(a)	The following definitions apply in G.S. 14-202.5 and G.S. 14-202.6:
(1)	'Freeware' means software that is distributed to a person free of charge regardless of whether use of the software is subject to certain restrictions.
(2)	'Information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided thorough the Internet or any other interactive computer service.
(3)	'Internet' means the largest nonproprietary nonprofit cooperative public computer network, popularly known as the Internet.
(4)	'Interactive computer service' means any information service or system that provides or enables computer access by multiple users to the Internet.
(5)	'Internet service provider' means any information, service, or access software provider that meets all of the following requirements:
a.	The provider provides or enables computer access to the Internet by multiple users by a computer server.
b.	The provider charges users' fees for access to its computer server.
c.	The provider is domiciled or does business in this State.
(6)	'Shareware' means copyrighted software in which the copyright owner sets certain conditions for its use and distribution, including requiring payment to the copyright owner after a person who has secured a copy of the software decides to use the software, regardless of whether the payment is for additional support or functionality for the software.
(b)	An Internet service provider shall provide free of charge to each subscriber of the service in this State a link leading to fully functional shareware, freeware, or demonstration versions of the software or to a service that, for at least one operating system, enables the subscriber to automatically block or screen material on the Internet.
(c)	An Internet service provider is considered to be in compliance with this section if the Internet service provider places, on the provider's first page of world wide web text information accessible to a subscriber, a link leading to the software or a service described by this section.  The identity of the link or other on-screen depiction of the link shall appear set out from surrounding written or graphical material so as to be conspicuous.
(d)	An Internet service provider who provides a link that complies with this section is not liable to a subscriber for any temporary inoperability of the link or for the effectiveness of the software or service to which the person links.
(e)	An Internet service provider is liable to the State for a civil penalty of two thousand dollars ($2,000) for each day on which the Internet service provider provides an interactive computer service for a fee but fails to provide a link to software or a service as required by this section.  The aggregate civil penalty shall not exceed sixty thousand dollars ($60,000).
(f)	The Attorney General may institute a suit to recover the civil penalty.  Before filing suit, the Attorney General shall give the Internet service provider notice of the provider's noncompliance and liability for a civil penalty.  If the Internet service provider complies with the requirements of this section not later than the 30th day after the date of the notice, the violation is considered cured and the Internet service provider is not liable for the civil penalty.
"§ 14-202.6.  Protection for 'Good Samaritan' blocking and screening of offensive material.
(a)	For purposes of this Article, no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(b)	No provider of an interactive computer service shall be held civilly liable on account of:
(1)	Any action voluntarily taken in good faith to restrict access to or availability of material that the provider considers to be obscene, harmful to minors, or otherwise objectionable, whether or not such material is constitutionally protected; or
(2)	Any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in this section.
(c)	Nothing in this section shall be construed to impair the enforcement of any criminal law of Chapter 14 of the General Statutes or any other State or federal criminal statute."
Section 7.  G.S. 14-196 reads as rewritten:
"§ 14-196.  Using profane, indecent or threatening language to any person by electronic communications; annoying or harassing by repeated electronic communications or making false statements by electronic communications.
(a)	It is unlawful for any person:
(1)	To use in electronic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation;
(2)	To use in electronic communications any words or language threatening to inflict bodily harm to any person or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person;
(3)	To electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called phone number or electronic address;
(4)	To electronically communicate and fail to hang up or disengage the connection with the intent to disrupt the service of another;
(5)	To electronically communicate with another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person electronically contacted or of any member of the person's family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass;
(6)	To knowingly permit any electronic communication device under the person's control to be used for any purpose prohibited by this section.
(b)	Any of the above offenses may be deemed to have been committed at either the place at which the electronic communication originated or at the place where the electronic communication was received.  For purposes of this section, "the terms 'electronic communications', 'electronically communicated', and 'electronically contacted' include communications made or received by way of a telephone answering machine or recorder, telefacsimile machine, computer modem, electronic mail, and all of the following as defined in G.S. 14-453:  computer, computer network, computer program, computer software, and computer system.
(c)	Anyone violating the provisions of this section is guilty of a Class 2 misdemeanor."
Section 8.  By January 1, 2000, the Department of Administration  shall adopt rules governing the use of State computers, the Internet, and electronic mail by State employees to implement this act.
Section 9.  By January 1, 2000, the Department of Public Instruction, in conjunction with the local school districts, shall evaluate the use of computers in the public school system and recommend to the State Board of Education appropriate software to shield students from obscene materials transmitted by computer.  Upon receiving the recommendation from the Department of Public Instruction, the State Board of Education shall select appropriate software that is client-based or server-based or the functional equivalent to shield students from obscene materials. The State Board of Education shall supervise the statewide installation and maintenance of the software in the public school system if that option is selected.
Section 10.  By January 1, 2000, public libraries that operate computers with Internet access that is available to minors shall take one of the following actions with respect to such computers:
(1)	Install by January 1, 2000, and maintain thereafter, appropriate software that is client-based or server-based, or the functional equivalent, to shield users from obscene material.
(2)	Use an Internet service provider that provides freeware to shield users from obscene material.
(3)	Permit access to such computers by a minor only if: (i) the minor is accompanied and monitored by the minor's parent, guardian, or by another authorized adult or library personnel; or (ii) the minor has written consent from the minor's parent or legal guardian granting permission for the minor to have access to the computer without adult supervision.
Section 11.  This act becomes effective December 1, 1999, and applies to offenses committed on or after that date.