Senate Bill sb0144c1

    Florida Senate - 2001                            CS for SB 144

    By the Committee on Criminal Justice and Senator Geller





    307-1624-01

  1                      A bill to be entitled

  2         An act relating to improper activity over the

  3         Internet; amending s. 847.001, F.S.; defining

  4         the term "child pornography" for purposes of

  5         ch. 847, F.S.; clarifying the definition of the

  6         term "sexual conduct"; defining the term

  7         "transmit"; creating s. 847.0137, F.S.;

  8         prohibiting transmissions over the Internet of

  9         pornography in specified circumstances;

10         providing penalties; creating s. 847.0139,

11         F.S.; providing immunity from civil liability

12         for reporting child pornography; providing an

13         effective date.

14

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 First Amendment

23  issues regarding adult pornography and jurisdictional issues

24  regarding child pornography, nevertheless agreed that internet

25  transmission of child pornography to a person in this state

26  constitutes a crime and that Florida has jurisdiction over any

27  person inside or outside this state who engages in such

28  transmission and over any person who knows or should know that

29  he or she is transmitting pornography to a minor in this

30  state, and

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    Florida Senate - 2001                            CS for SB 144
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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 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 or she believes to be a minor but who is

14  actually a law enforcement officer engaged in an investigation

15  or operation in accordance with the laws of this state, which

16  is already statutorily authorized in relation to

17  computer-solicitation offenses against minors, and

18         WHEREAS, the Legislature finds that the First Amendment

19  is not violated by prohibiting the transmission by any means

20  of pornography of any kind to a minor nor by prohibiting the

21  transmission of child 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 may be amended to address jurisdictional concerns

28  regarding child pornography, as those concerns have already

29  been addressed by the Legislature regarding

30  computer-solicitation offenses against minors, and

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    Florida Senate - 2001                            CS for SB 144
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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

  8  could lead to the apprehension of persons conveying child

  9  pornography by any means but protects persons from possible

10  arrest based on unsubstantiated or false accusations or

11  statements or the submission of falsified evidence by the

12  person reporting the child pornography, and

13         WHEREAS, the Legislature finds that the laws of this

14  state may 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.  Section 847.001, Florida Statutes, is

25  amended to read:

26         847.001  Definitions.--As When used in this chapter,

27  the term:

28         (1)  "Child pornography" means any image depicting a

29  minor engaged in sexual conduct.

30         (2)(1)  "Computer" means an electronic, magnetic,

31  optical, electrochemical, or other high-speed data processing

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    Florida Senate - 2001                            CS for SB 144
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  1  device performing logical, arithmetic, or storage functions

  2  and includes any data storage facility or communications

  3  facility directly related to or operating in conjunction with

  4  such device. The term also includes: any on-line service,

  5  Internet service, or local bulletin board; any electronic

  6  storage device, including a floppy disk or other magnetic

  7  storage device; or any compact disc that has read-only memory

  8  and the capacity to store audio, video, or written materials.

  9         (3)(2)  "Deviate sexual intercourse" means sexual

10  conduct between persons not married to each other consisting

11  of contact between the penis and the anus, the mouth and the

12  penis, or the mouth and the vulva.

13         (4)(3)  "Harmful to minors" means that quality of any

14  description, exhibition, presentation, or representation, in

15  whatever form, of nudity, sexual conduct, or sexual excitement

16  when it:

17         (a)  Predominantly appeals to the prurient, shameful,

18  or morbid interest of minors;

19         (b)  Is patently offensive to prevailing standards in

20  the adult community as a whole with respect to what is

21  suitable material for minors; and

22         (c)  Taken as a whole, is without serious literary,

23  artistic, political, or scientific value for minors.

24

25  A mother's breastfeeding of her baby is not under any

26  circumstance "harmful to minors."

27         (5)(4)  "Minor" means any person under the age of 18

28  years.

29         (6)(5)  "Nudity" means the showing of the human male or

30  female genitals, pubic area, or buttocks with less than a

31  fully opaque covering; or the showing of the female breast

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    Florida Senate - 2001                            CS for SB 144
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  1  with less than a fully opaque covering of any portion thereof

  2  below the top of the nipple; or the depiction of covered male

  3  genitals in a discernibly turgid state.  A mother's

  4  breastfeeding of her baby does not under any circumstance

  5  constitute "nudity," irrespective of whether or not the nipple

  6  is covered during or incidental to feeding.

  7         (7)(6)  "Person" includes individuals, firms,

  8  associations, corporations, and all other groups and

  9  combinations.

10         (8)(7)  "Obscene" means the status of material which:

11         (a)  The average person, applying contemporary

12  community standards, would find, taken as a whole, appeals to

13  the prurient interest;

14         (b)  Depicts or describes, in a patently offensive way,

15  sexual conduct as specifically defined herein; and

16         (c)  Taken as a whole, lacks serious literary,

17  artistic, political, or scientific value.

18

19  A mother's breastfeeding of her baby is not under any

20  circumstance "obscene."

21         (9)(8)  "Sadomasochistic abuse" means flagellation or

22  torture by or upon a person or animal, or the condition of

23  being fettered, bound, or otherwise physically restrained, for

24  the purpose of deriving sexual satisfaction, or satisfaction

25  brought about as a result of sadistic violence, from

26  inflicting harm on another or receiving such harm oneself.

27         (10)(9)  "Sexual battery" means oral, anal, or vaginal

28  penetration by, or union with, the sexual organ of another or

29  the anal or vaginal penetration of another by any other

30  object; however, "sexual battery" does not include an act done

31  for a bona fide medical purpose.

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    Florida Senate - 2001                            CS for SB 144
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  1         (11)(10)  "Sexual bestiality" means any sexual act

  2  between a person and an animal involving the sex organ of the

  3  one and the mouth, anus, or vagina of the other.

  4         (12)(11)  "Sexual conduct" means actual or simulated

  5  sexual intercourse, deviate sexual intercourse, sexual

  6  bestiality, masturbation, or sadomasochistic abuse; actual

  7  lewd exhibition of the genitals; actual physical contact with

  8  a person's clothed or unclothed genitals, pubic area,

  9  buttocks, or, if such person is a female, breast with the

10  intent to arouse or gratify the sexual desire of either party;

11  or any act or conduct which constitutes sexual battery or

12  simulates that sexual battery is being or will be committed.

13  A mother's breastfeeding of her baby does not under any

14  circumstance constitute "sexual conduct."

15         (13)(12)  "Sexual excitement" means the condition of

16  the human male or female genitals when in a state of sexual

17  stimulation or arousal.

18         (14)(13)  "Simulated" means the explicit depiction of

19  conduct described in subsection (12) (11) which creates the

20  appearance of such conduct and which exhibits any uncovered

21  portion of the breasts, genitals, or buttocks.

22         (15)  "Transmit" means to send an electronic mail

23  communication to a specified electronic mail address or

24  addresses.

25         Section 2.  Section 847.0137, Florida Statutes, is

26  created to read:

27         847.0137  Transmission of pornography by means of the

28  Internet prohibited; penalties.--

29         (1)  For purposes of this section, the term "minor"

30  means any person less than 18 years of age.

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  1         (2)  Notwithstanding ss. 847.012 and 847.0133, any

  2  person in this state who knew that he or she was transmitting,

  3  by means of the Internet:

  4         (a)  Child pornography, as defined in s. 847.001, to

  5  another person in this state or in another jurisdiction; or

  6         (b)  An image harmful to minors, as defined in s.

  7  847.001, to a known minor, or a person believed to be a minor,

  8  in this state

  9

10  commits a felony of the third degree, punishable as provided

11  in s. 775.082, s. 775.083, or s. 775.084.

12         (3)  Notwithstanding ss. 847.012 and 847.0133, any

13  person in any jurisdiction other than this state who knew that

14  he or she was transmitting, by means of the Internet:

15         (a)  Child pornography, as defined in s. 847.001, to

16  any person in this state; or

17         (b)  An image harmful to minors, as defined in s.

18  847.001, to a known minor, or a person believed to be a minor,

19  in this state

20

21  commits a felony of the third degree, punishable as provided

22  in s. 775.082, s. 775.083, or s. 775.084.

23         (4)  This section does not apply to subscription-based

24  transmissions such as list servers.

25         (5)  This section does not prohibit the prosecution of

26  a person in this state or another jurisdiction for a violation

27  of any law of this state, including a law providing for

28  penalties greater than those prescribed in this section, for

29  the transmission, by means of the Internet, of an image

30  harmful to minors, or child pornography, as defined in s.

31  847.001, to any person in this state.

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    Florida Senate - 2001                            CS for SB 144
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  1         (6)  A person is subject to prosecution in this state

  2  pursuant to chapter 910 for any act or conduct proscribed by

  3  this section, including a person in a jurisdiction other than

  4  this state, if the act or conduct violates paragraph (3)(a) or

  5  paragraph (3)(b).

  6         Section 3.  Section 847.0139, Florida Statutes, is

  7  created to read:

  8         847.0139  Immunity from civil liability for reporting

  9  child pornography.--Any person who reports to a law

10  enforcement officer what the person reasonably believes to be

11  child pornography as defined in s. 847.001(1) may not be held

12  civilly liable for reporting such information. For purposes of

13  this section, reporting child pornography to a law enforcement

14  officer may include furnishing the officer with a copy of a

15  photograph or other evidence of what the person reasonably

16  believes to be child pornography.

17         Section 4.  This act shall take effect July 1, 2001.

18

19          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
20                         Senate Bill 144

21

22  -     Deletes from the definition of "child pornography" the
          phrase "or intending to depict" so that the bill defines
23        "child pornography" as "any image depicting a minor
          engaged in sexual conduct."
24
    -     Deletes from the elements of the new offenses the phrase
25        "or believed under the circumstances" so the state would
          have to prove the Internet user actually knew he or she
26        was transmitting illegal images.

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