Text of KY HB 241 (2024)

UNOFFICIAL COPY 24 RS BR 988 Page 1 of 8 XXXX 1/10/2024 1:52 PM Jacketed AN ACT relating to the protection of minors. 1 Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2 SECTION 1. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 3 READ AS FOLLOWS: 4 The General Assembly hereby finds and declares that: 5 (1) Pornography is creating a public health crisis and having a corroding influence 6 on minors; 7 (2) Due to advances in technology, the universal availability of the internet, and 8 limited age verification requirements, minors are being exposed to pornography 9 earlier in age; 10 (3) Pornography contributes to the hyper-sexualization of teens and prepubescent 11 children and may lead to low self-esteem, body image disorders, an increase in 12 problematic sexual activity at younger ages, and increased desire among 13 adolescents to engage in risky sexual behavior; 14 (4) Pornography may also impact brain development and functioning, contribute to 15 emotional and medical illnesses, shape deviate sexual arousal, and lead to 16 difficulty in forming or maintaining positive, intimate relationships, as well as 17 harmful sexual behaviors and addiction; and 18 (5) It is in the interest of the people of the Commonwealth of Kentucky to protect 19 minors from being able to access obscene or erotic matter through the internet or 20 other digital networks. 21 SECTION 2. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 22 READ AS FOLLOWS: 23 As used in Sections 1 to 8 of this Act: 24 (1) "Age verification" means verifying that the person seeking access to the matter is 25 eighteen (18) years old or older, through any of the following methods: 26 (a) State-issued form of identification, including but not limited to an 27 UNOFFICIAL COPY 24 RS BR 988 Page 2 of 8 XXXX 1/10/2024 1:52 PM Jacketed operator's license or personal identification card issued under KRS Chapter 1 186 that establishes age; 2 (b) Identification issued by any agency of the United States government or the 3 Kentucky National Guard that establishes age; 4 (c) Identification issued by a public or private college, university, or 5 postgraduate technical or professional school located within the United 6 States that establishes age; 7 (d) Verification through an independent, third-party age verification service 8 that compares the personal information entered by the individual who is 9 seeking access to the matter with information that is available from a 10 commercially available database, or aggregate of databases, that is 11 regularly used by government agencies and businesses for purposes of age 12 and identity verification; or 13 (e) Any commercially reasonable method of identification that relies on public 14 or private transaction data to verify that the person attempting to access the 15 matter is at least eighteen (18) years of age or older, including but not 16 limited to a mortgage document or utility bill, or other reliable document 17 that establishes age; 18 (2) "Covered platform" means an entity that: 19 (a) Is a website; and 20 (b) Is in the regular course of trade or business to create, host, or make 21 available content that meets the definition of matter harmful to minors 22 under subsection (7) of this section, with the objective of earning a profit, 23 regardless of whether: 24 1. The entity actually earns a profit on the activities described in this 25 paragraph; or 26 2. Creating, hosting, or making available content that meets the 27 UNOFFICIAL COPY 24 RS BR 988 Page 3 of 8 XXXX 1/10/2024 1:52 PM Jacketed definition of matter harmful to minors under subsection (7) of this 1 section is the sole source of income or principal business of the entity; 2 (3) "Distribute" means to issue, sell, give, provide, deliver, transfer, transmit, 3 circulate, or disseminate by any means, with or without consideration; 4 (4) "Information content provider" has the same meaning as in 47 U.S.C. sec. 5 230(f)(3); 6 (5) "Interactive computer service" has the same meaning as in 47 U.S.C. sec. 7 230(f)(2); 8 (6) "Matter" has the same meaning as in KRS 531.010; 9 (7) "Matter harmful to minors" means: 10 (a) Any matter that the average person, applying contemporary community 11 standards, and taking the matter as a whole with respect to minors, would 12 find is designed to appeal to, or pander to, the prurient interest; 13 (b) Any matter that exploits, is devoted to, or principally consists of descriptions 14 of actual, simulated, or animated display or depiction of any of the 15 following, in a manner patently offensive with respect to minors: 16 1. Pubic area, anus, vulva, genitals, or nipple of the female breast; 17 2. Touching, caressing, or fondling of buttocks, anuses, pubic areas, 18 genitals, or nipples of the female breast; or 19 3. Sexual conduct as defined in KRS 531.010; and 20 (c) The matter taken as a whole lacks serious literary, artistic, political, or 21 scientific value for minors; 22 (8) "Minor" means any person under the age of eighteen (18) years; 23 (9) "Publish" means to communicate or make information available to another 24 person or entity on a publicly available website; and 25 (10) "Transactional data" means a sequence of information that documents an 26 exchange, agreement, or transfer between an individual, commercial entity, or 27 UNOFFICIAL COPY 24 RS BR 988 Page 4 of 8 XXXX 1/10/2024 1:52 PM Jacketed third party used for the purpose of satisfying a request or event, and may include 1 records from mortgage, education, and employment entities. 2 SECTION 3. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 3 READ AS FOLLOWS: 4 (1) Any covered platform that knowingly and intentionally publishes or distributes 5 matter harmful to minors on the internet and fails to perform age verification of 6 individuals attempting to access the matter shall be liable as provided in this 7 section. 8 (2) Any person injured by a violation of this section, or a parent or legal guardian on 9 behalf of any minor injured by a violation of this section, may bring a civil action 10 against the covered platform to recover: 11 (a) Damages of ten thousand dollars ($10,000) per instance that the covered 12 platform failed to perform age verification to restrict the minor's access to 13 matter harmful to minors; and 14 (b) Actual damages, court costs, and reasonable attorney's fees. 15 (3) This section shall only apply to a minor who: 16 (a) Is a permanent resident of this state; 17 (b) Has resided in this state for more than one (1) year; or 18 (c) Has been sojourning in this state for a period of at least thirty-one (31) 19 consecutive days. 20 SECTION 4. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 21 READ AS FOLLOWS: 22 (1) Any covered platform or third party that performs the age verification required 23 under Section 3 of this Act shall not retain any identifying information of the 24 individual after access has been granted to the matter. 25 (2) A covered platform or third party that is found to have knowingly retained 26 identifying information of the individual after access has been granted to the 27 UNOFFICIAL COPY 24 RS BR 988 Page 5 of 8 XXXX 1/10/2024 1:52 PM Jacketed matter shall be liable to the individual for: 1 (a) Damages of one thousand dollars ($1,000) for each twenty-four (24) hour 2 period that the information is retained; and 3 (b) Actual damages, court costs, and reasonable attorney's fees. 4 SECTION 5. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 5 READ AS FOLLOWS: 6 (1) Any party filing a civil action under Section 3 or 4 of this Act shall: 7 (a) Bring the action in: 8 1. The Circuit Court of the county where the alleged violation occurred; 9 2. The Circuit Court of the county in which the person bringing the 10 action resides; or 11 3. Franklin Circuit Court; and 12 (b) Have the right to a jury trial, and the jury shall decide both liability and 13 damages. 14 (2) An individual may bring an action under Section 3 or 4 of this Act regardless of 15 whether another court has declared any provision of Sections 1 to 8 of this Act 16 unconstitutional, unless that court decision is binding upon the court in which 17 the action is brought. 18 (3) Nonmutual issue preclusion and nonmutual claim preclusion shall not be 19 defenses to an action brought under Section 3 or 4 of this Act. 20 (4) Notwithstanding any other law: 21 (a) The requirements of Sections 1 to 8 of this Act shall be enforced exclusively 22 through private civil actions; and 23 (b) Direct or indirect enforcement of Sections 1 to 8 of this Act shall not be 24 taken or threatened by: 25 1. The Commonwealth of Kentucky; 26 2. A political subdivision of the Commonwealth; 27 UNOFFICIAL COPY 24 RS BR 988 Page 6 of 8 XXXX 1/10/2024 1:52 PM Jacketed 3. The Attorney General; 1 4. A Commonwealth's attorney or county attorney; or 2 5. An executive or administrative officer or employee of the 3 Commonwealth in his or her official capacity; 4 against any person or entity, in any manner whatsoever. 5 SECTION 6. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 6 READ AS FOLLOWS: 7 (1) Nothing in Sections 1 to 8 of this Act shall be construed to impose liability on: 8 (a) An internet service provider, or its affiliates or subsidiaries; 9 (b) A general purpose search engine; 10 (c) A cloud service provider; 11 (d) A telecommunications service provider; 12 (e) An interconnected Voice over Internet Protocol (VoIP) provider; 13 (f) A provider of mobile services as defined in 47 U.S.C. sec. 153; 14 (g) A provider of commercial mobile services as defined in 47 U.S.C. sec 15 332(d); or 16 (h) A cable operator as defined in 47 U.S.C. sec. 522; 17 when acting in its capacity as a provider of those services to the extent the 18 provider is not responsible for the creation of the content of the communication 19 that constitutes matter harmful to minors. 20 (2) Nothing in Sections 1 to 8 of this Act shall be construed to limit or bar any cause 21 of action or preclude the imposition of sanctions or penalties, including criminal 22 penalties, that would otherwise be available under state or federal law. 23 (3) Compliance with Sections 1 to 8 of this Act shall not excuse any person from any 24 other legal duties or preclude any person from any other legal remedies. 25 (4) Sections 1 to 8 of this Act shall not subject a covered platform to any cause of 26 action or liability to the extent it is protected from causes of action or liability by 27 UNOFFICIAL COPY 24 RS BR 988 Page 7 of 8 XXXX 1/10/2024 1:52 PM Jacketed federal law, including but not limited to 47 U.S.C. sec. 230. 1 (5) The provisions of Sections 1 to 8 of this Act shall not apply in cases to the extent 2 the provisions would violate the Commerce Clause of the Constitution of the 3 United States. 4 SECTION 7. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 5 READ AS FOLLOWS: 6 (1) A waiver, purported waiver, or estoppel of a person's right to bring a civil action 7 under Section 3 or 4 of this Act, or of any remedy or any other protection 8 provided by Sections 1 to 8 of this Act, shall be void and unenforceable as against 9 public policy, and a court or arbitrator shall not enforce or give effect to any 10 waiver or estoppel, notwithstanding any choice-of-law or other provision in any 11 contract or other agreement. 12 (2) The waiver and estoppel prohibition under subsection (1) of this section: 13 (a) Shall not apply to contractual waivers to the extent any application of the 14 prohibition would impair the obligation of contract in violation of the 15 Constitution of Kentucky or the Constitution of the United States; 16 (b) Is a public policy limitation on contractual and other waivers or estoppels; 17 and 18 (c) Shall be enforced to the full extent permitted by the Constitution of 19 Kentucky and the Constitution of the United States. 20 (3) Any contract, agreement, or arrangement made or entered in violation of 21 Sections 1 to 8 of this Act shall be void and unenforceable as against public 22 policy. 23 SECTION 8. A NEW SECTION OF KRS CHAPTER 436 IS CREATED TO 24 READ AS FOLLOWS: 25 (1) It is the intent of the General Assembly that a court judgment or order 26 suspending enforcement of any provision of Sections 1 to 8 of this Act shall not 27 UNOFFICIAL COPY 24 RS BR 988 Page 8 of 8 XXXX 1/10/2024 1:52 PM Jacketed be regarded as tantamount to a repeal of that provision. 1 (2) If any provision of Sections 1 to 8 of this Act or the application thereof to any 2 person or circumstance is held invalid, the invalidity shall not affect other 3 provisions or applications of Sections 1 to 8 of this Act that can be given effect 4 without the invalid provision or application, and to this end the provisions of 5 Sections 1 to 8 of this Act are severable. In particular, it is the intent of the 6 General Assembly that: 7 (a) Any invalidity or potential invalidity of a provision of Sections 1 to 8 of this 8 Act shall not impair the immediate and continuing enforceability of the 9 remaining provisions; and 10 (b) The provisions of Sections 1 to 8 of this Act shall not have the effect of 11 repealing or limiting any other laws of this state, except as specified by 12 those sections. 13