GENERAL ASSEMBLY OF NORTH CAROLINA
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Short Title: Limit Child's Access/Computer Porn. |
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AN ACT TO PROHIBIT THE DISSEMINATION OF OBSCENITIES BY COMPUTER TRANSMISSION, to increase the penalties for certain criminal offenses concerning minors and obscenity, TO PROHIBIT THE USE OF STATE COMPUTERS TO ACCESS OBSCENITIES, TO REGULATE CERTAIN USES OF STATE COMPUTERS, 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, and to direct the department of justice to a list of electronic sites known to contain child pornography and to focus more of its law enforcement effort, as feasible, to enforcing the obscenity laws.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-190.1 reads as rewritten:
"§ 14-190.1. Obscene literature and exhibitions.
(a) It shall be is
unlawful for any person, firm or corporation person to
intentionally disseminate obscenity. A person, firm or corporation person
disseminates obscenity within the meaning of this Article if he or it:the
person:
(1) Sells, delivers or
provides delivers, makes accessible to another person by computer, or
provides or offers or agrees to sell, deliver or provide 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 shall be is
unlawful for any person, firm or corporation person to knowingly
and intentionally create, buy, procure or possess obscene material with the
purpose and intent of disseminating it unlawfully.
(f) It shall be is
unlawful for a person, firm or corporation person to
advertise or otherwise promote the sale of material represented or held out by
said person, firm or corporation as obscene.
(g) Violation of this
section is a Class I H 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. 14-190.6 reads as rewritten:
"§ 14-190.6. Employing or permitting minor to assist in offense under Article.
Every person 18 years of age or older who intentionally, in
any manner, hires, employs, uses or permits any minor under the age of 16 years
to do or assist in doing any act or thing constituting an offense under this
Article and involving any material, act or thing he knows or reasonably should
know to be obscene within the meaning of G.S. 14-190.1, shall be guilty of a
Class I H felony."
SECTION 3. G.S. 14-190.7 reads as rewritten:
"§ 14-190.7. Dissemination to minors under the age of 16 years.
Every person 18 years of age or older who knowingly disseminates
to any minor under the age of 16 years any material which he knows or
reasonably should know to be obscene within the meaning of G.S. 14-190.1 shall
be guilty of a Class I H felony."
SECTION 4. 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 he that
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 I Class H felon."
SECTION 5. 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; and G.S. 14-190.19, participating in
prostitution of a minor. 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 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 6. G.S. 14-190.14(b) reads as rewritten:
"(b) Punishment. -
Violation of this section is a Class 21 misdemeanor. Each day's
violation of this section is a separate offense."
SECTION 7. 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, he: 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
or peruse 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, he 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 his
the employee's or agent's employment.
(3) Before disseminating
or exhibiting the harmful material or performance, the defendant requested and
received a driver's 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 8. G.S. 14-190.16(d) reads as rewritten:
"(d) Punishment and
Sentencing. - Violation of this section is a Class D C felony."
SECTION 9. G.S. 14-190.17(d) reads as rewritten:
"(d) Punishment and
Sentencing. - Violation of this section is a Class F E felony."
SECTION 10. G.S. 14-190.17A(d) reads as rewritten:
"(d) Punishment and
Sentencing. - Violation of this section is a Class I H
felony."
SECTION 11. Article 26 of Chapter 14 of the General Statutes is amended by adding the following new section:
"§ 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 all of the following conditions are met:
(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.
(3) The person knowingly allows a minor to access material on the computer that is harmful to minors, 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 employee's or agent'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 minor.
(c) Punishment. - Violation of this section is a Class 1 misdemeanor."
SECTION 12. Article 26 of Chapter 14 of the General Statutes is amended by adding the following new sections:
"§ 14-202.5. Unlawful to access or disseminate obscenities on a governmental computer.
(a) The following definitions apply in this section:
(1) Computer. - Includes all of the following terms as they are defined in G.S. 14-453: computer, computer network, computer program, computer software, computer system, and data.
(2) Government. - The State of North Carolina or any agency or political subdivision of the State.
(3) Government computer. - A computer used for government purposes that is owned or leased in whole or in part or is otherwise under the control and general management of the State or any agency or political subdivision of the State.
(b) 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.
(c) A violation of this section is a Class 1 misdemeanor and is also grounds for disciplinary action under Chapter 126 of the General Statutes.
"§ 14-202.6. 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. 14-202.6 and G.S. 14-202.7:
(1) Freeware. - 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. - 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. - The largest nonproprietary nonprofit cooperative public computer network, popularly known as the Internet.
(4) Interactive computer service. - Any information service or system that provides or enables computer access by multiple users to the Internet.
(5) Internet service provider. - 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. - 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 of 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 worldwide 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.
"§ 14-202.7. 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 either of the following:
(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.
(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 subdivision (1) of this subsection.
(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 13. G.S. 14-196 reads as rewritten:
"§ 14-196.
Using profane, indecent or threatening language to any person over
telephone; by electronic communications; annoying or harassing by
repeated telephoning electronic communications or making
false statements over telephone. by electronic communications.
(a) It shall be is
unlawful for any person:
(1) To use in telephonic
electronic communications any words or language of a profane,
vulgar, lewd, lascivious or indecent character, nature or connotation;
(2) To use in telephonic
electronic communications any words or language threatening to
inflict bodily harm to any person or to that person's child, sibling, spouse,
or dependent 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 telephone electronically
communicate with another repeatedly, whether or not conversation ensues,
for the purpose of abusing, annoying, threatening, terrifying, harassing or
embarrassing any person at the called number; phone number or
electronic address;
(4) To make a telephone
call electronically communicate and fail to hang up or disengage the
connection with the intent to disrupt the service of another;
(5) To telephone electronically
communicate with another and to knowingly make any false statement
concerning death, injury, illness, disfigurement, indecent conduct or criminal
conduct of the person telephoned electronically contacted or of
any member of his the person's family or household with the
intent to abuse, annoy, threaten, terrify, harass, or embarrass;
(6) To knowingly permit
any telephone electronic communication device under his 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 telephone
call or calls were made electronic communication originated or at
the place where the telephone call or calls were electronic
communication was received. For purposes of this section, the term
"telephonic communications" shall include 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, or computer modem.
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 shall be is guilty of a Class 2
misdemeanor."
SECTION 14. By January 1, 2002, 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 15. By January 1, 2002, 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 16. By January 1, 2002, 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, 2002, and maintain thereafter, appropriate software that is client-based or server-based, or the functional equivalent, to shield minors from obscene material.
(2) Use an Internet service provider that provides freeware to shield minors 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, legal 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 17. The Department of Justice shall publish a list, without images, of Usenet newsgroups, IP addresses, World Wide Web sites or other Internet sources that have been found to contain child pornography. This list shall also be posted on the Internet site of the Department of Justice.
SECTION 18. The Department of Justice shall, as feasible, implement more of its law enforcement effort to enforce obscenity laws, and to identify and discourage deceptive or unfair practices that entice children to view obscene materials, including the practices of "mouse trapping" and deceptive meta-tagging.
SECTION 19. This act becomes effective December 1, 2001, and applies to offenses committed on or after that date.