Senate Bill 1284e2
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1 A bill to be entitled
2 An act relating to improper activity over the
3 Internet; requiring that the Department of Law
4 Enforcement increase public awareness
5 concerning Internet safety; requiring the
6 department to develop guidelines for using the
7 Internet; requiring the development of a
8 mechanism to report crimes through an Internet
9 site; amending s. 501.203, F.S.; including
10 business or commercial entities within the
11 definition of the term "consumer" for purposes
12 of ch. 501, F.S.; amending s. 501.207, F.S.;
13 authorizing an action on behalf of a
14 governmental entity for damages caused by a
15 violation of part II of ch. 501, F.S.; amending
16 s. 501.2075, F.S.; providing for waiver of
17 civil penalties if restitution is made for
18 actual damages to a governmental entity;
19 repealing s. 501.2091, F.S., relating to an
20 authorization for a stay of proceedings pending
21 trial by a party to an action under part II of
22 ch. 501, F.S.; amending s. 501.211, F.S.;
23 providing for the recovery of actual damages on
24 the part of a person who suffers a loss as a
25 result of a violation of part II of ch. 501,
26 F.S.; amending s. 501.212, F.S.; deleting an
27 exemption from regulation under part II of ch.
28 50l, F.S., for persons regulated under laws
29 administered by other agencies; amending s.
30 847.001, F.S.; defining the term "child
31 pornography" for purposes of ch. 847, F.S.;
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1 clarifying the definition of the term "sexual
2 conduct"; defining the term "transmit";
3 creating s. 847.0137, F.S.; prohibiting
4 transmissions over the Internet of pornography
5 in specified circumstances; providing
6 penalties; creating s. 847.0139, F.S.;
7 providing immunity from civil liability for
8 reporting child pornography; providing an
9 effective date.
10
11 WHEREAS, the Florida Information Service Technology
12 Development Task Force has determined and the Legislature
13 finds that, although the Internet offers enormous positive
14 opportunities for the citizens of this state, it also offers
15 many opportunities for criminal activity and victimization,
16 and
17 WHEREAS, computer and Internet-related crime continues
18 to escalate rapidly throughout our state, the nation, and the
19 world, and
20 WHEREAS, although many businesses and residents have
21 become aware of the potential dangers and are cautious in
22 their use of the Internet, others, perhaps even a majority of
23 Internet users, are unaware of the dangers of on-line crime or
24 are unaware of what they can do to prevent their becoming
25 victims of on-line crime, and
26 WHEREAS, the Legislature finds that the state should
27 improve public awareness on how to safely use the Internet,
28 and
29 WHEREAS, the task force has also recommended and the
30 Legislature finds that it is important to ensure that the
31 statutory protections provided for businesses and the public
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1 against fraud, child abuse, and crimes continue into the new
2 world of electronic commerce over the Internet, and
3 WHEREAS, it is of paramount importance that the courts
4 of this state maintain jurisdiction over perpetrators of
5 Internet crime in order to protect businesses and members of
6 the public, and
7 WHEREAS, sellers of goods and services to businesses
8 and individuals in this state should be regulated in a uniform
9 manner, regardless of the method used to contact or deliver
10 goods or services to that business or individual, and
11 WHEREAS, a person's right to equal protection under the
12 laws of this state should not be diminished because the manner
13 of sales transaction has changed as a result of technological
14 advances, and
15 WHEREAS, The Florida Information Service Technology
16 Development Task Force, in finding that the Internet offers
17 many opportunities for criminal activity and victimization,
18 specifically addressed a subset of that criminal activity
19 relating to the transmission, including Internet transmission,
20 of adult and child pornography, and
21 WHEREAS, the task force, while it recognizes that such
22 transmission is a complicated matter involving primarily First
23 Amendment issues regarding adult pornography and
24 jurisdictional issues regarding child pornography,
25 nevertheless agreed with the statement that internet
26 transmission of child pornography constitutes a crime and that
27 Florida has jurisdiction over any person inside or outside of
28 this state who has engaged in such transmission or knew or
29 should have known that he or she was transmitting pornography
30 to a minor in this state, and
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1 WHEREAS, the task force also agreed with the statement
2 that any person in this state who transmits child pornography
3 to anyone inside or outside of this state commits a crime and
4 that Florida has jurisdiction over such person, and
5 WHEREAS, the task force also agreed with the statement
6 that any person outside this state who transmits child
7 pornography to any person inside this state or who knows or
8 should know that he or she is doing so commits a crime and
9 that Florida has jurisdiction over such person, and
10 WHEREAS, the Legislature also agrees with these
11 statements and finds that these statements should extend to
12 instances in which a person transmits child pornography to
13 someone whom he believes to be a minor but who is actually a
14 law enforcement officer engaged in an investigation or
15 operation in accordance with the laws of this state, which is
16 already statutorily authorized in relation to computer
17 solicitation offenses against minors, and
18 WHEREAS, the Legislature finds that the First Amendment
19 should not be violated by transmission by any means of
20 pornography of any kind to a minor and transmission of child
21 pornography to any person, and
22 WHEREAS, the Legislature finds that the prohibition of
23 the acts or conduct reflected by the various statements agreed
24 upon by the task force and the Legislature can be accomplished
25 by amending the laws of this state, and
26 WHEREAS, the Legislature finds that the laws of this
27 state can be amended to address jurisdictional concerns
28 regarding child pornography, as those concerns have already
29 been addressed by the Legislature regarding computer
30 solicitation offenses against minors, and
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1 WHEREAS, the task force also recommended that
2 legislation be enacted which would not require anyone to
3 report pornography, including child pornography, but which
4 would grant civil immunity from lawsuits to any person who
5 reports to appropriate law enforcement agents what the person
6 reasonably believes to be child pornography, and
7 WHEREAS, the Legislature finds this recommendation may
8 lead to the apprehension of persons conveying by any means
9 child pornography but protects persons from possible arrest
10 based on unsubstantiated or false accusations or statements or
11 the submission of falsified evidence by the person reporting
12 the presence of child pornography, and
13 WHEREAS, the Legislature finds that the laws of this
14 state can be amended to grant civil immunity to any persons
15 who report what they reasonably believe to be child
16 pornography to appropriate law enforcement agents, including
17 immunity from civil liability for a person who furnishes a
18 copy of a photograph or other evidence to law enforcement
19 agents of what the person reasonably believes to be child
20 pornography, NOW, THEREFORE,
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Public awareness campaign on Internet
25 safety.--
26 (1) The Computer Crime Center within the Department of
27 Law Enforcement shall coordinate the development of a
28 comprehensive public awareness campaign on Internet safety.
29 This effort should include a partnership with the Attorney
30 General and the Department of Education, as well as other
31 agencies and organizations as necessary. At a minimum, the
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1 campaign must include the development of guidelines for the
2 safe and secure use of the Internet, including the best ways
3 to prevent users from becoming victims of Internet crime.
4 These should also include detailed guidelines for parents to
5 consider for protecting their children from on-line encounters
6 with molesters, pedophiles, and other criminal elements.
7 (2) In addition, the public awareness campaign must
8 include the development of a mechanism to report Internet
9 crimes through the public Internet site of the Department of
10 Law Enforcement. Because of the need to establish a simple
11 method for reporting Internet crimes to law enforcement
12 agencies, the Department of Law Enforcement shall work in
13 cooperation with local law enforcement agencies in
14 investigating and prosecuting Internet crimes.
15 Section 2. Subsection (7) of section 501.203, Florida
16 Statutes, is amended to read:
17 501.203 Definitions.--As used in this chapter, unless
18 the context otherwise requires, the term:
19 (7) "Consumer" means an individual; child, by and
20 through its parent or legal guardian; business; firm;
21 association; joint venture; partnership; estate; trust;
22 business trust; syndicate; fiduciary; corporation; any
23 commercial entity, however denominated; or any other group or
24 combination.
25 Section 3. Subsections (1), (3), and (6) of section
26 501.207, Florida Statutes, are amended to read:
27 501.207 Remedies of enforcing authority.--
28 (1) The enforcing authority may bring:
29 (a) An action to obtain a declaratory judgment that an
30 act or practice violates this part.
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1 (b) An action to enjoin any person who has violated,
2 is violating, or is otherwise likely to violate, this part.
3 (c) An action on behalf of one or more consumers or
4 governmental entities for the actual damages caused by an act
5 or practice in violation of this part. However, no damages
6 are not shall be recoverable under this section against a
7 retailer who has in good faith engaged in the dissemination of
8 claims of a manufacturer or wholesaler without actual
9 knowledge that it violated this part.
10 (3) Upon motion of the enforcing authority or any
11 interested party in any action brought under subsection (1),
12 the court may make appropriate orders, including, but not
13 limited to, appointment of a master or receiver or
14 sequestration or freezing of assets, to reimburse consumers or
15 governmental entities found to have been damaged; to carry out
16 a transaction in accordance with the consumers' reasonable
17 expectations of consumers or governmental entities; to strike
18 or limit the application of clauses of contracts to avoid an
19 unconscionable result; to order any defendant to divest
20 herself or himself of any interest in any enterprise,
21 including real estate; to impose reasonable restrictions upon
22 the future activities of any defendant to impede her or him
23 from engaging in or establishing the same type of endeavor; to
24 order the dissolution or reorganization of any enterprise; or
25 to grant other appropriate relief. The court may assess the
26 expenses of a master or receiver against a person who has
27 violated, is violating, or is otherwise likely to violate this
28 part. Any injunctive order, whether temporary or permanent,
29 issued by the court shall be effective throughout the state
30 unless otherwise provided in the order.
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1 (6) The enforcing authority may terminate an
2 investigation or an action upon acceptance of a person's
3 written assurance of voluntary compliance with this part.
4 Acceptance of an assurance may be conditioned on a commitment
5 to reimburse consumers or governmental entities, make
6 contributions, pay civil penalties, pay attorney's fees and
7 costs, or take other appropriate corrective action. An
8 assurance is not evidence of a prior violation of this part.
9 However, unless an assurance has been rescinded by agreement
10 of the parties or voided by a court for good cause, subsequent
11 failure to comply with the terms of an assurance is prima
12 facie evidence of a violation of this part. No Such assurance
13 is not shall act as a limitation upon any action or remedy
14 available to a person aggrieved by a violation of this part.
15 Section 4. Section 501.2075, Florida Statutes, is
16 amended to read:
17 501.2075 Civil penalty.--Except as provided in s.
18 501.2077, any person, firm, corporation, association, or
19 entity, or any agent or employee of the foregoing, who is
20 willfully using, or has willfully used, a method, act, or
21 practice declared unlawful under s. 501.204, or who is
22 willfully violating any of the rules of the department adopted
23 promulgated under this part, is liable for a civil penalty of
24 not more than $10,000 for each such violation. Willful
25 violations occur when the person knew or should have known
26 that his or her conduct was unfair or deceptive or prohibited
27 by rule. This civil penalty may be recovered in any action
28 brought under this part by the enforcing authority; or the
29 enforcing authority may terminate any investigation or action
30 upon agreement by the person, firm, corporation, association,
31 or entity, or the agent or employee of the foregoing, to pay a
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1 stipulated civil penalty. The department or the court may
2 waive any such civil penalty if the person, firm, corporation,
3 association, or entity, or the agent or employee of the
4 foregoing, has previously made full restitution or
5 reimbursement or has paid actual damages to the consumers or
6 governmental entities who have been injured by the unlawful
7 act or practice or rule violation. If civil penalties are
8 assessed in any litigation, the enforcing authority is
9 entitled to reasonable attorney's fees and costs. A civil
10 penalty so collected shall accrue to the state and shall be
11 deposited as received into the General Revenue Fund
12 unallocated.
13 Section 5. Section 501.2091, Florida Statutes, is
14 repealed.
15 Section 6. Subsection (2) of section 501.211, Florida
16 Statutes, is amended to read:
17 501.211 Other individual remedies.--
18 (2) In any individual action brought by a person
19 consumer who has suffered a loss as a result of a violation of
20 this part, such person consumer may recover actual damages,
21 plus attorney's fees and court costs as provided in s.
22 501.2105.; However, no damages, fees, or costs are not shall
23 be recoverable under this section against a retailer who has,
24 in good faith, engaged in the dissemination of claims of a
25 manufacturer or wholesaler without actual knowledge that it
26 violated this part.
27 Section 7. Subsection (4) of section 501.212, Florida
28 Statutes, is amended to read:
29 501.212 Application.--This part does not apply to:
30 (4) Any person or activity regulated under laws
31 administered by the Department of Insurance or the Florida
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1 Public Service Commission or banks and savings and loan
2 associations regulated by the Department of Banking and
3 Finance or banks or savings and loan associations regulated by
4 federal agencies.
5 Section 8. Section 847.001, Florida Statutes, is
6 amended to read:
7 847.001 Definitions.--When used in this chapter:
8 (1) "Child pornography" means any image depicting, or
9 intending to depict, a minor engaged in sexual conduct.
10 (2)(1) "Computer" means an electronic, magnetic,
11 optical, electrochemical, or other high-speed data processing
12 device performing logical, arithmetic, or storage functions
13 and includes any data storage facility or communications
14 facility directly related to or operating in conjunction with
15 such device. The term also includes: any on-line service,
16 Internet service, or local bulletin board; any electronic
17 storage device, including a floppy disk or other magnetic
18 storage device; or any compact disc that has read-only memory
19 and the capacity to store audio, video, or written materials.
20 (3)(2) "Deviate sexual intercourse" means sexual
21 conduct between persons not married to each other consisting
22 of contact between the penis and the anus, the mouth and the
23 penis, or the mouth and the vulva.
24 (4)(3) "Harmful to minors" means that quality of any
25 description, exhibition, presentation, or representation, in
26 whatever form, of nudity, sexual conduct, or sexual excitement
27 when it:
28 (a) Predominantly appeals to the prurient, shameful,
29 or morbid interest of minors;
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1 (b) Is patently offensive to prevailing standards in
2 the adult community as a whole with respect to what is
3 suitable material for minors; and
4 (c) Taken as a whole, is without serious literary,
5 artistic, political, or scientific value for minors.
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7 A mother's breastfeeding of her baby is not under any
8 circumstance "harmful to minors."
9 (5)(4) "Minor" means any person under the age of 18
10 years.
11 (6)(5) "Nudity" means the showing of the human male or
12 female genitals, pubic area, or buttocks with less than a
13 fully opaque covering; or the showing of the female breast
14 with less than a fully opaque covering of any portion thereof
15 below the top of the nipple; or the depiction of covered male
16 genitals in a discernibly turgid state. A mother's
17 breastfeeding of her baby does not under any circumstance
18 constitute "nudity," irrespective of whether or not the nipple
19 is covered during or incidental to feeding.
20 (7)(6) "Person" includes individuals, firms,
21 associations, corporations, and all other groups and
22 combinations.
23 (8)(7) "Obscene" means the status of material which:
24 (a) The average person, applying contemporary
25 community standards, would find, taken as a whole, appeals to
26 the prurient interest;
27 (b) Depicts or describes, in a patently offensive way,
28 sexual conduct as specifically defined herein; and
29 (c) Taken as a whole, lacks serious literary,
30 artistic, political, or scientific value.
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1 A mother's breastfeeding of her baby is not under any
2 circumstance "obscene."
3 (9)(8) "Sadomasochistic abuse" means flagellation or
4 torture by or upon a person or animal, or the condition of
5 being fettered, bound, or otherwise physically restrained, for
6 the purpose of deriving sexual satisfaction, or satisfaction
7 brought about as a result of sadistic violence, from
8 inflicting harm on another or receiving such harm oneself.
9 (10)(9) "Sexual battery" means oral, anal, or vaginal
10 penetration by, or union with, the sexual organ of another or
11 the anal or vaginal penetration of another by any other
12 object; however, "sexual battery" does not include an act done
13 for a bona fide medical purpose.
14 (11)(10) "Sexual bestiality" means any sexual act
15 between a person and an animal involving the sex organ of the
16 one and the mouth, anus, or vagina of the other.
17 (12)(11) "Sexual conduct" means actual or simulated
18 sexual intercourse, deviate sexual intercourse, sexual
19 bestiality, masturbation, or sadomasochistic abuse; actual
20 lewd exhibition of the genitals; actual physical contact with
21 a person's clothed or unclothed genitals, pubic area,
22 buttocks, or, if such person is a female, breast with the
23 intent to arouse or gratify the sexual desire of either party;
24 or any act or conduct which constitutes sexual battery or
25 simulates that sexual battery is being or will be committed.
26 A mother's breastfeeding of her baby does not under any
27 circumstance constitute "sexual conduct."
28 (13)(12) "Sexual excitement" means the condition of
29 the human male or female genitals when in a state of sexual
30 stimulation or arousal.
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1 (14)(13) "Simulated" means the explicit depiction of
2 conduct described in subsection (12) (11) which creates the
3 appearance of such conduct and which exhibits any uncovered
4 portion of the breasts, genitals, or buttocks.
5 (15) "Transmit" means to send an electronic mail
6 communication to a specified electronic mail address or
7 addresses.
8 Section 9. Section 847.0137, Florida Statutes, is
9 created to read:
10 847.0137 Transmission of pornography by means of the
11 Internet prohibited; penalties.--
12 (1) For purposes of this section, the term "minor"
13 means any person less than 18 years of age.
14 (2) Notwithstanding ss. 847.012 and 847.0133, any
15 person in this state who knew or believed under the
16 circumstances that he or she was transmitting, by means of the
17 Internet:
18 (a) Child pornography, as defined in s. 847.001, to
19 another person in this state or in another jurisdiction; or
20 (b) An image harmful to minors, as defined in s.
21 847.001, to a known minor, or a person believed to be a minor,
22 in this state
23
24 commits a felony of the third degree, punishable as provided
25 in s. 775.082, s. 775.083, or s. 775.084.
26 (3) Notwithstanding ss. 847.012 and 847.0133, any
27 person in any jurisdiction other than this state who knew or
28 believed under the circumstances that he or she was
29 transmitting, by means of the Internet:
30 (a) Child pornography, as defined in s. 847.001, to
31 any person in this state; or
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1 (b) An image harmful to minors, as defined in s.
2 847.001, to a known minor, or a person believed to be a minor,
3 in this state
4
5 commits a felony of the third degree, punishable as provided
6 in s. 775.082, s. 775.083, or s. 775.084.
7 (4) This section shall not apply to subscription-based
8 transmissions such as list servers.
9 (5) This section shall not be construed to prohibit
10 prosecution of a person in this state or another jurisdiction
11 for a violation of any law of this state, including a law
12 providing for greater penalties than prescribed in this
13 section, for the transmission, by means of the Internet, of an
14 image harmful to minors, or child pornography, as defined in
15 s. 847.001, to any person in this state.
16 (6) A person is subject to prosecution in this state
17 pursuant to chapter 910 for any act or conduct proscribed by
18 this section, including a person in a jurisdiction other than
19 this state, if the act or conduct violates paragraph (3)(a) or
20 paragraph (3)(b).
21 Section 10. Section 847.0139, Florida Statutes, is
22 created to read:
23 847.0139 Immunity from civil liability for reporting
24 child pornography.--Any person who reports to a law
25 enforcement officer what the person reasonably believes to be
26 child pornography as defined in s. 847.001(1) may not be held
27 civilly liable for reporting such information. For purposes of
28 this section, reporting child pornography to a law enforcement
29 officer may include furnishing the officer with a copy of a
30 photograph or other evidence of what the person reasonably
31 believes to be child pornography.
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1 Section 11. This act shall take effect July 1, 2000.
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