SF 2159 (LSB 5430XS (7) 91)

SENATE FILE 2159

BY  SALMON

A BILL FOR

An Act relating to materials used for prurient purposes, including age verification requirements for certain commercial entities, prohibitions on the publication, distribution, creation, or development of prohibited material, and prohibitions on child sexual exploitation material, and providing civil penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
PROHIBITED MATERIALS ON THE INTERNET

    Section 1.  NEW SECTION.  554J.1  Definitions.
   For purposes of this chapter:
   1.  “Child sexual abuse material” means the same as child pornography as that term is defined in 18 U.S.C. §2256.
   2.  “Commercial entity” means any entity or natural person that operates in whole or in part for the purpose of earning pecuniary gain, whether or not such gain is actually realized.
   3.  “Creation or development” includes the use of algorithms in a manner that a person knows allows, or is substantially likely to allow, an individual using an internet site to access prohibited material.
   4.  “Digitized identification card” means a data file described by all of the following:
   a.  The data file contains all of the data elements visible on the front and back of a state-issued license or identification card and displays, including but not limited to whether the license or identification card is currently valid.
   b.  The data file is available through the internet from a state-approved source that allows a mobile device to download the data file from a state agency or an authorized agent of a state agency.
   5.  “Distribute” means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means.
   6.  “Information content provider” means a person responsible, in whole or in part, for creating or developing information provided through an interactive computer service.
   7.  “Interactive computer service” means the same as defined in 47 U.S.C. §230.
   8.  “Knowingly and intentionally” means intentionally engaging in conduct, including the use of algorithms, in a manner that the actor knows will allow, or is substantially likely to allow, an internet site user to access certain content.
   9.  “Material harmful to minors” means all of the following:
   a.  Material that the average person, applying contemporary community standards, would find taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to the prurient interest.
   b.  Material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive with respect to minors:
   (1)  Pubic hair, anus, vulva, genitals, or nipple of the female breast.
   (2)  Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.
   (3)  Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.
   c.  Material that taken as a whole lacks serious literary, artistic, political, or scientific value for minors.
   10.  “Minor” means an individual that is under eighteen years of age.
   11.  “News-gathering organization” means any of the following, or an employee of the following who is operating within the scope of the employee’s employment and who can provide documentation of such employment:
   a.  A newspaper, news publication, or news source that is printed, online, or available through a mobile platform.
   b.  A radio broadcast station.
   c.  A television broadcast station or cable television operator.
   d.  A wire service.
   12.  “Obscene material” means all of the following:
   a.  Material that the average person, applying contemporary community standards, would find taking the material as a whole, lacks serious literary, artistic, political, or scientific value, and is designed to appeal to, or is designed to pander to the prurient interest.
   b.  Any of the following material that exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated display or depiction of any of the following, in a manner patently offensive:
   (1)  Pubic hair, anus, vulva, genitals, or nipple of the female breast.
   (2)  Touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals.
   (3)  Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.
   c.  Material that taken as a whole lacks serious literary, artistic, political, or scientific value.
   13.  “Prohibited material” means all of the following:
   a.  Child sexual abuse material.
   b.  Material harmful to minors that is publicly available and can be accessed without reasonable age verification.
   c.  Obscene material.
   14.  “Reasonable age verification” means verifying that an individual is not a minor by using any of the following:
   a.  Requiring the individual to provide a digitized identification card or mobile identification.
   b.  Using an independent, third-party age verification service that compares the personal information entered by an individual to information available from a commercially available database, or aggregate of databases, that is regularly used by government agencies and businesses for the purpose of age and identity verification.
   c.  Using a commercially reasonable method that relies on public or private transactional data to verify the individual is not a minor.
   15.  “Transactional data” means a sequence of information that documents an exchange, agreement, or transfer between an individual, a commercial entity, or a third party. “Transactional data” includes but is not limited to records from a mortgage, education, or an employer.
    Sec. 2.  NEW SECTION.  554J.2  Liability —— material harmful to minors —— allowing or facilitating internet access.
   1.  a.  A commercial entity that knowingly and intentionally facilitates access to material harmful to minors on an internet site, including social media, of which more than one-third of the content is material harmful to minors, shall use reasonable age verification to ensure that a user attempting to access the internet site is not a minor.
   2.  A commercial entity that distributes material harmful to minors on an internet site shall use reasonable age verification to ensure that a user attempting to access the internet site is not a minor.
   3.  A commercial entity that knowingly and intentionally is responsible, in whole or in part, for the creation or development of material harmful to minors on an internet site shall use reasonable age verification to ensure that a user attempting to access the internet site is not a minor. 
   4.  A commercial entity, or a third party that performs reasonable age verification for a commercial entity, shall not retain identifying information about an individual after performing reasonable age verification on the individual.
   5.  a.  A commercial entity that violates subsection 1, 2, or 3 shall be civilly liable to a minor for the minor’s access to material harmful to minors.
   b.  A parent, legal guardian, or custodian for a minor may bring an action under this section on behalf of the minor.
   c.  A minor may be awarded actual damages, reasonable attorney fees, reasonable expert witness fees, court costs, and noneconomic damages not less than five thousand dollars per violation.
   6.  A commercial entity or third party that violates subsection 4 shall be civilly liable for actual damages, reasonable attorney fees, and court costs incurred by an individual as a result of the commercial entity or third party retaining identifying information.
    Sec. 3.  NEW SECTION.  554J.3  Liability —— internet distributors, creators, developers —— prohibited material.
   1.  A person shall not knowingly and intentionally allow or facilitate access to, distribute, create, or develop prohibited material on an internet site. 
   2.  a.  A person that violates subsection 1 shall be civilly liable to all of the following as applicable:
   (1)  A minor depicted in or exposed to child sexual abuse material.
   (2)  An individual depicted in or exposed to obscene material that is not child sexual abuse material.
   b.  A parent, legal guardian, or custodian for a minor may bring an action under this section on behalf of the minor.
   c.  A person may be awarded actual damages, reasonable attorney fees, reasonable expert witness fees, court costs, and noneconomic damages not less than five thousand dollars per violation.
    Sec. 4.  NEW SECTION.  554J.4  Exemptions.
   1.  This chapter shall not apply to a bona fide news or public interest broadcast, internet video, report, or similar event.
   2.  This chapter shall not be construed to affect the rights of a news-gathering organization or require a news-gathering organization to perform reasonable age verification.
   3.  a.  An interactive computer service provider shall not be liable under this chapter on account of any action taken voluntarily and in good faith to remove or prevent access to prohibited material, or to enable or make available to information content providers or others the technical means to block or prevent access to the prohibited material.
   b.  This subsection shall not limit an interactive computer service provider’s liability if any of the following apply:
   (1)  The interactive computer service provider knew it would induce, and intended to induce, other persons to post prohibited material on the interactive computer service provider’s internet site.
   (2)  The interactive computer service provider contributed to the character of the prohibited material.
   (3)  The interactive computer service provider knew that the interactive computer service provider allowed, or knew it was substantially likely that the interactive computer service provider allowed, users to access prohibited material.
   (4)  The interactive computer service provider otherwise contributes, in whole or in part, to the creation or development of prohibited material.
    Sec. 5.  NEW SECTION.  554J.5  Attorney general —— powers.
   The attorney general may seek injunctive and other equitable relief against a person that is in violation of this chapter.
    Sec. 6.  NEW SECTION.  554J.6  General provisions.
   1.  This chapter is intended to create a statutory cause of action for knowing and intentional acts in violation of this chapter. The duties and liabilities created under this chapter do not depend on whether the violator would be considered a publisher or distributor of prohibited content or would be considered in breach of a standard of care under one or more common law causes of action.
   2.  An individual may assert a violation of this chapter as a claim in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government, any private person, or any other party.
   3.  An action under this chapter may be commenced, and relief may be granted, in a court of the state without regard to whether the individual commencing the action has sought or exhausted available administrative remedies.
   4.  Sovereign immunity shall not be an affirmative defense in any action pursuant to this chapter.
   5.  Individual claims that satisfy the generally applicable standards for joinder or class action elsewhere provided by law or rules of court, as applicable, may combine their claims in a single action.
   6.  A person that has violated this chapter in a manner that satisfies the standards for imposition of punitive damages elsewhere provided by law may be held liable for punitive damages.
   7.  The remedies available under this chapter may be awarded without regard to whether the conduct giving rise to the remedy resulted in a criminal conviction.
   8.  In an action under this chapter, contributory fault shall not bar a claimant’s recovery, and no claimant shall be allocated fault under chapter 668. One hundred percent of the fault in any such action shall be allocated under section 668.3 to persons, other than the claimant or claimants, found to be causally at fault. No party may disclose to the trier of fact the impact of this subsection.
   9.  A judge, agent, or employee of a court, or an attorney or agent or employee of an attorney, who views obscene material, or material that depicts, describes, or promotes child sexual abuse material, is not criminally responsible or civilly liable when viewing or possessing such material in good faith during the course of a judicial process or the representation of a client or potential client, and while acting within the scope of such judicial process, representation, employment, or agency relationship.
DIVISION II
CHILD SEXUAL EXPLOITATION MATERIAL

    Sec. 7.  Section 728.1, Code 2026, is amended by adding the following new subsection:
   NEW SUBSECTION.  01.  “Child sexual exploitation material” means an anatomically correct mannequin, robot, doll, device, or image that is intended for use in sexual acts and that has features that resemble a minor.
    Sec. 8.  NEW SECTION.  728.17  Devices and images resembling minors.
   1.  A person who knowingly buys, sells, delivers, possesses, or distributes child sexual exploitation material violates this section.
   2.  A person in violation of this section shall be subject to a civil penalty in an amount not to exceed ten thousand dollars for each violation. A civil penalty collected by the state under this paragraph shall be deposited in the general fund of the state.
   3.  a.  An individual whose image or likeness is represented by child sexual exploitation material shall have a cause of action against a person who bought, sold, delivered, possessed, or distributed the child sexual exploitation material that represents the individual’s image or likeness.
   b.  An individual with a cause of action under paragraph “a” shall be entitled to actual damages, reasonable attorney fees, reasonable expert witness fees, court costs, and noneconomic damages in an amount not less than five thousand dollars per violation.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to materials used for prurient purposes.
   DIVISION I —— PROHIBITED MATERIALS ON THE INTERNET. The bill defines “child sexual abuse material”, “commercial entity”, “creation or development”, “digitized identification card”, “distribute”, “information content provider”, “interactive computer service”, “knowingly and intentionally”, “material harmful to minors”, “minor”, “news-gathering organization”, “obscene material”, “prohibited material”, “reasonable age verification”, and “transactional data”.
   The bill provides that a commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on an internet site, of which more than one-third of the content is material harmful to minors, shall use reasonable age verification to ensure that a user attempting to access the internet site is not a minor. The bill makes the same requirement for commercial entities that distribute material harmful to minors on an internet site and commercial entities that are responsible for the creation or development of material harmful to minors. 
   The bill prohibits a commercial entity, or a third party that performs reasonable age verification for a commercial entity, from retaining identifying information about an individual after performing reasonable age verification on the individual. 
   The bill makes a commercial entity that allows a minor to access material harmful to minors civilly liable to the minor as detailed in the bill. A commercial entity, or a third party that performs reasonable age verification for a commercial entity, will be civilly liable as detailed in the bill for retaining identifying information after performing reasonable age verification on an individual.
   The bill prohibits any person from allowing or facilitating, distributing, creating, or developing prohibited material on an internet site, and makes a person in violation of this provision of the bill civilly liable, as detailed in the bill, to a minor depicted in or exposed to child sexual abuse material, or an individual depicted in or exposed to obscene material that is not child sexual abuse material.
   The bill exempts bona fide news or public interest broadcasts, internet videos, reports, or similar events from the bill’s provisions. The bill shall not be construed to affect the rights of a news-gathering organization or require a news-gathering organization to perform reasonable age verification.
   The bill exempts an interactive computer service provider (service provider) from liability under the bill on account of any action taken voluntarily and in good faith to remove or prevent access to prohibited material, or to enable or make available to information content providers or others the technical means to block or prevent access to the prohibited material.
   The bill details when a service provider is not exempt from the bill.
   The bill allows the attorney general to seek injunctive and other equitable relief against a person in violation of the bill.
   The bill is intended to create a statutory cause of action for knowing and intentional acts in violation of the bill. The duties and liabilities created in the bill do not depend on whether a violator would be considered a publisher or distributor of prohibited content or would be considered in breach of a standard of care under one or more common law causes of action.
   The bill allows an individual to assert a violation of the bill as a claim in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government, any private person, or any other party.
   The bill allows an action under the bill to commence, and relief to be granted, in a court of the state without regard to whether the individual commencing the action has sought or exhausted available administrative remedies.
   Sovereign immunity shall not be an affirmative defense in any action pursuant to the bill.
   The bill allows individual claims that satisfy the generally applicable standards for joinder or class action elsewhere provided by law or rules of court, as applicable, to combine their claims in a single action.
   The bill allows for the imposition of punitive damages if a person violates the bill in a manner that satisfies the standards for imposition of punitive damages elsewhere provided by law.
   Remedies available under the bill may be awarded without regard to whether the conduct giving rise to the remedy resulted in a criminal conviction.
   The bill does not allow contributory fault to bar a claimant’s recovery, and no claimant shall be allocated fault under Code chapter 668 (liability in tort —— comparative fault). One hundred percent of the fault in any such action shall be allocated to persons, other than the claimant or claimants, found to be causally at fault. No party may disclose to the trier of fact the impact of this provision.
   The bill exempts a judge, agent or employee of a court, or an attorney or agent or employee of an attorney, who views obscene material, or material that depicts, describes, or promotes child pornography or child sexual exploitation, from criminal responsibility and civil liability when viewing or possessing such material in good faith during the course of a judicial process or the representation of a client or potential client, and while acting within the scope of such judicial process, representation, employment, or agency relationship.
   DIVISION II —— CHILD SEXUAL EXPLOITATION MATERIAL. The bill defines “child sexual exploitation material” as an anatomically correct mannequin, robot, doll, device, or image that is intended for use in sexual acts and that has features that resemble a minor.
   A person who knowingly buys, sells, delivers, possesses, or distributes child sexual exploitation material (CSEM) is in violation of the bill. A person who violates this provision is subject to a civil penalty in an amount not to exceed $10,000 for each violation. Such a civil penalty collected by the state shall be deposited in the general fund of the state.
   The bill provides an individual whose image or likeness is represented by CSEM a cause of action against a person who bought, sold, delivered, possessed, or distributed the CSEM that represents the individual’s image or likeness, and allows the individual to collect actual damages, reasonable attorney fees, reasonable expert witness fees, court costs, and noneconomic damages in an amount not less than $5,000 per violation.