Text of MD HB 1311 (2024)
Criminal Law - Obscene Material - Device Filters
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As introduced
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EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW.
[Brackets] indicate matter deleted from existing law.
*hb1311*
HOUSE BILL 1311
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By: Delegate McComas
Introduced and read first time: February 9, 2024
Assigned to: Economic Matters
A BILL ENTITLED
AN ACT concerning
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Criminal Law – Obscene Material – Device Filters
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FOR the purpose of requiring, beginning on a certain date, all devices activated in the State
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to enable a certain filter to prevent minors from accessing obscene material;
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prohibiting a certain person from deactivating the filter; providing that a
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manufacturer of a device and certain persons are subject to civil and criminal
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liability for certain conduct related to device filters; authorizing the Attorney
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General to take certain actions against persons who violate this Act; authorizing
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parents or legal guardians of minors who access obscene material to file a private
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cause of action against a certain manufacturer; and generally relating to obscene
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material and device filters.
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BY repealing and reenacting, without amendments,
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Article – Criminal Law
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Section 11–203(a)(5) and (b)
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Annotated Code of Maryland
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(2021 Replacement Volume and 2023 Supplement)
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BY adding to
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Article – Criminal Law
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Section 11–203.1
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Annotated Code of Maryland
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(2021 Replacement Volume and 2023 Supplement)
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SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
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That the Laws of Maryland read as follows:
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Article – Criminal Law
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11–203.
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HOUSE BILL 1311
(a)
(5)
“Obscene” means:
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(i)
that the average adult applying contemporary community
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standards would find that the work, taken as a whole, appeals to the prurient interest;
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(ii)
that the work depicts sexual conduct specified in subsection (b)
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of this section in a way that is patently offensive to prevailing standards in the adult
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community as a whole with respect to what is suitable material; and
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(iii)
that the work, taken as a whole, lacks serious artistic,
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educational, literary, political, or scientific value.
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(b)
(1)
A person may not willfully or knowingly display or exhibit to a minor
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an item:
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(i)
the cover or content of which is principally made up of an obscene
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description or depiction of illicit sex; or
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(ii)
that consists of an obscene picture of a nude or partially nude
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figure.
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(2)
A person may not willfully or knowingly engage in the business of
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displaying, exhibiting, selling, showing, advertising for sale, or distributing to a minor an
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item:
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(i)
the cover or content of which is principally made up of an obscene
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description or depiction of illicit sex; or
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(ii)
that consists of an obscene picture of a nude or partially nude
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figure.
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(3)
If a newsstand or other place of business is frequented by minors, the
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owner, operator, franchisee, manager, or an employee with managerial responsibility may
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not openly and knowingly display at the place of business an item whose sale, display,
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exhibition, showing, or advertising is prohibited by paragraph (2) of this subsection.
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11–203.1.
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(A)
(1)
IN THIS SECTION THE FOLLOWING WORDS HAVE THE MEANINGS
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INDICATED.
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(2)
“ACTIVATE” MEANS THE PROCESS OF POWERING ON A DEVICE
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AND ASSOCIATING IT WITH A NEW USER ACCOUNT.
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(3)
“DEVICE” MEANS A TABLET OR A SMARTPHONE MANUFACTURED
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ON OR AFTER JANUARY 1, 2025.
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HOUSE BILL 1311
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(4)
“DIGITAL IDENTIFICATION CARD” MEANS A DATA FILE AVAILABLE
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ON ANY MOBILE DEVICE THAT HAS CONNECTIVITY TO THE INTERNET THROUGH A
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STATE–APPROVED APPLICATION THAT ALLOWS THE MOBILE DEVICE TO DISPLAY:
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(I)
THE FACE AND BACK OF A LICENSE OR IDENTIFICATION
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CARD; AND
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(II)
THE CURRENT STATUS OF THE LICENSE OR CARD.
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(5)
“FILTER” MEANS SOFTWARE INSTALLED ON A DEVICE THAT IS
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CAPABLE OF PREVENTING THE DEVICE FROM ACCESSING OR DISPLAYING OBSCENE
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MATERIAL THROUGH INTERNET BROWSERS OR SEARCH ENGINES.
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(6)
“INTERNET” MEANS THE GLOBAL INFORMATION SYSTEM THAT:
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(I)
IS LOGICALLY LINKED TOGETHER BY A GLOBALLY UNIQUE
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ADDRESS SPACE BASED ON THE INTERNET PROTOCOL, OR ITS SUBSEQUENT
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EXTENSIONS,
THAT
IS
ABLE
TO
SUPPORT
COMMUNICATIONS
USING
THE
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TRANSMISSION CONTROL PROTOCOL OR INTERNET PROTOCOL SUITE, OR ITS
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SUBSEQUENT
EXTENSIONS,
OR
OTHER
INTERNET
PROTOCOL–COMPATIBLE
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PROTOCOLS; AND
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(II)
PROVIDES,
USES,
OR
MAKES
ACCESSIBLE,
EITHER
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PUBLICLY OR PRIVATELY, HIGH–LEVEL SERVICES LAYERED ON COMMUNICATIONS
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AND RELATED INFRASTRUCTURE.
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(7)
“MANUFACTURER” MEANS A PERSON OR COMPANY THAT:
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(I)
IS ENGAGED IN THE BUSINESS OF MANUFACTURING A
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DEVICE;
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(II)
HOLDS THE PATENTS FOR THE DEVICE IT MANUFACTURES;
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AND
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(III) HAS A COMMERCIAL DESIGNATED REGISTERED AGENT IN
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THE STATE.
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(8)
“MINOR” MEANS AN INDIVIDUAL UNDER THE AGE OF 18 YEARS
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WHO IS NOT:
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(I)
EMANCIPATED;
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HOUSE BILL 1311
(II)
MARRIED; OR
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(III) A MEMBER OF THE ARMED FORCES OF THE UNITED STATES.
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(9)
“OBSCENE” HAS THE MEANING STATED IN § 11–203 OF THIS
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SUBTITLE.
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(10) “REASONABLE AGE VERIFICATION” MEANS VERIFYING THAT THE
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PARENT OR LEGAL GUARDIAN SEEKING TO ACCESS OBSCENE MATERIAL IS AT LEAST
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18 YEARS OLD BY USING ANY OF THE FOLLOWING METHODS:
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(I)
USE OF A DIGITAL IDENTIFICATION CARD;
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(II)
VERIFICATION THROUGH AN INDEPENDENT, THIRD–PARTY
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AGE VERIFICATION SERVICE THAT COMPARES THE PERSONAL INFORMATION
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ENTERED BY THE INDIVIDUAL WHO IS SEEKING ACCESS TO THE MATERIAL TO THAT
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WHICH IS AVAILABLE FROM A COMMERCIALLY AVAILABLE DATABASE, OR
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AGGREGATE OF DATABASES THAT IS REGULARLY USED BY BUSINESSES FOR THE
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PURPOSE OF AGE AND IDENTITY VERIFICATION;
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(III) USE OF BIOMETRIC AGE APPROXIMATION TECHNIQUES
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THAT ESTIMATE AGE BASED ON A USER’S VOICE OR FACE; OR
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(IV)
ANY COMMERCIALLY REASONABLE METHOD THAT RELIES
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ON PUBLIC OR PRIVATE TRANSACTIONAL DATA TO VERIFY THE AGE OF THE PERSON
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ATTEMPTING TO ACCESS THE MATERIAL.
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(11) “SMARTPHONE” MEANS AN ELECTRONIC DEVICE THAT COMBINES
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A CELL PHONE WITH A HAND–HELD COMPUTER, TYPICALLY OFFERING INTERNET
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ACCESS THROUGH A BROWSER OR SEARCH ENGINE, DATA STORAGE, TEXT, AND
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E–MAIL CAPABILITIES.
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(12) “TABLET” MEANS AN INTERNET–READY DEVICE EQUIPPED WITH:
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(I)
AN OPERATING SYSTEM, TOUCHSCREEN DISPLAY, AND
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RECHARGEABLE BATTERY; AND
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(II)
THE ABILITY TO SUPPORT ACCESS TO A CELLULAR
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NETWORK.
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(B)
BEGINNING ON JANUARY 1, 2025, ALL DEVICES ACTIVATED IN THE
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STATE SHALL:
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(1)
DETERMINE THE AGE OF THE USER DURING ACTIVATION AND
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ACCOUNT SET–UP;
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(2)
ENABLE AN EXISTING FILTER FOR MINOR USERS, WHEREIN THE
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FILTER SHALL BE SET TO THE ON POSITION WHEN THE USER IS A MINOR;
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(3)
PREVENT A MINOR FROM ACCESSING OBSCENE MATERIAL
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THROUGH ALL INTERNET BROWSERS OR SEARCH ENGINES ON THE DEVICE VIA:
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(I)
MOBILE DATA NETWORKS;
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(II)
WIRED INTERNET NETWORKS; AND
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(III) WIRELESS INTERNET NETWORKS;
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(4)
NOTIFY THE MINOR USER OF THE DEVICE WHEN THE FILTER
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BLOCKS THE DEVICE FROM ACCESSING A WEBSITE;
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(5)
ALLOW PARENTS OR LEGAL GUARDIANS OF MINOR USERS TO
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DISABLE THE FILTER OR UNBLOCK A WEBSITE AFTER PROVIDING REASONABLE AGE
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VERIFICATION; AND
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(6)
ALLOW PARENTS OR LEGAL GUARDIANS OF MINOR USERS TO
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RE–ACTIVATE THE FILTER AT ANY TIME.
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(C)
A PERSON, OTHER THAN A PARENT OR LEGAL GUARDIAN, MAY NOT
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DEACTIVATE OR UNINSTALL THE FILTER REQUIRED UNDER SUBSECTION (B) OF THIS
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SECTION FOR A MINOR UNDER THE CARE AND CONTROL OF THE PARENT OR
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GUARDIAN.
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(D)
(1)
SUBJECT TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION,
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BEGINNING JANUARY 1, 2025, A MANUFACTURER OF A DEVICE SHALL BE SUBJECT
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TO CIVIL AND CRIMINAL LIABILITY IF:
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(I)
A DEVICE IS ACTIVATED IN THE STATE;
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(II)
THE DEVICE DOES NOT, ON ACTIVATION, ENABLE A FILTER
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THAT COMPLIES WITH THE REQUIREMENTS UNDER SUBSECTION (B) OF THIS
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SECTION; AND
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(III) A MINOR ACCESSES OBSCENE MATERIAL ON THE DEVICE.
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HOUSE BILL 1311
(2)
NOTWITHSTANDING PARAGRAPH (1) OF THIS SUBSECTION, THIS
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SECTION DOES NOT APPLY TO A MANUFACTURER THAT MAKES A GOOD FAITH
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EFFORT TO PROVIDE A DEVICE THAT, ON ACTIVATION OF THE DEVICE IN THE STATE,
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AUTOMATICALLY
ENABLES
A
GENERALLY
ACCEPTED
AND
COMMERCIALLY
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REASONABLE FILTER THAT BLOCKS OBSCENE MATERIAL ON ALL INTERNET
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BROWSERS OR SEARCH ENGINES ACCESSED ON THE DEVICE IN ACCORDANCE WITH
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THIS SECTION.
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(3)
THIS SECTION MAY NOT BE CONSTRUED TO CREATE A CAUSE OF
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ACTION AGAINST THE RETAILER OF A DEVICE.
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(E)
(1)
EXCEPT FOR A MINOR’S PARENT OR LEGAL GUARDIAN, ANY
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PERSON IS CIVILLY LIABLE FOR DISABLING THE FILTER ON A DEVICE IN THE
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POSSESSION OF THE MINOR IF THE MINOR ACCESSES OBSCENE MATERIAL.
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(2)
(I)
BEGINNING ON JANUARY 1, 2025, EXCEPT FOR A PARENT
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OR LEGAL GUARDIAN, A PERSON MAY NOT DISABLE THE FILTER ON A DEVICE IN THE
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POSSESSION OF A MINOR.
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(II)
A PERSON WHO VIOLATES THIS PARAGRAPH IS SUBJECT TO:
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1.
FOR A FIRST OFFENSE, A FINE NOT EXCEEDING
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$5,000;
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2.
FOR
A
SECOND
OR
SUBSEQUENT
OFFENSE,
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IMPRISONMENT NOT EXCEEDING 1 YEAR OR A FINE NOT EXCEEDING $50,000.
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(F)
(1)
IF THE ATTORNEY GENERAL HAS REASON TO BELIEVE THAT A
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PERSON VIOLATED OR IS VIOLATING THIS SECTION, THE ATTORNEY GENERAL,
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ACTING IN PUBLIC INTEREST, MAY FILE A CIVIL CAUSE OF ACTION IN THE NAME OF
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THE STATE AGAINST THE PERSON TO:
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(I)
ENJOIN ANY ACTION THAT CONSTITUTES A VIOLATION OF
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THIS SECTION BY THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER OR
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PRELIMINARY OR PERMANENT INJUNCTION;
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(II)
RECOVER FROM THE ALLEGED VIOLATOR A CIVIL PENALTY
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NOT EXCEEDING $5,000 PER VIOLATION, AND NOT EXCEEDING $50,000 IN
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AGGREGATE, AS DETERMINED BY THE COURT;
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(III) RECOVER FROM THE ALLEGED VIOLATOR THE ATTORNEY
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GENERAL’S REASONABLE EXPENSES, INVESTIGATIVE COSTS, AND ATTORNEY’S
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FEES; OR
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HOUSE BILL 1311
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(IV)
OBTAIN OTHER APPROPRIATE RELIEF.
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(2)
THE ATTORNEY GENERAL MAY ISSUE SUBPOENAS TO ANY
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PERSON AND CONDUCT HEARINGS IN AID OF ANY INVESTIGATION OR INQUIRY IN
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ADDITION TO OTHER POWERS CONFERRED ON THE ATTORNEY GENERAL BY THIS
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SECTION.
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(3)
THE ATTORNEY GENERAL MAY SEEK THE REVOCATION OF ANY
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LICENSE OR CERTIFICATE AUTHORIZING A MANUFACTURER TO ENGAGE IN
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BUSINESS IN THE STATE.
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(4)
FOR PURPOSES OF ASSESSING A PENALTY UNDER THIS SECTION,
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A MANUFACTURER IS CONSIDERED TO HAVE COMMITTED A SEPARATE VIOLATION
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FOR EACH DEVICE MANUFACTURED ON OR AFTER JANUARY 1, 2025, THAT VIOLATES
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THE PROVISIONS OF THIS SECTION.
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(G)
(1)
ANY PARENT OR LEGAL GUARDIAN OF A MINOR WHO ACCESSES
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OBSCENE MATERIAL IN VIOLATION OF THIS SECTION MAY FILE A PRIVATE CAUSE OF
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ACTION IN A COURT OF COMPETENT JURISDICTION AGAINST A MANUFACTURER WHO
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FAILS TO COMPLY WITH THIS SECTION.
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(2)
A PREVAILING PLAINTIFF MAY RECOVER:
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(I)
ACTUAL DAMAGES;
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(II)
IN THE DISCRETION OF THE COURT WHERE ACTUAL
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DAMAGES ARE DIFFICULT TO ASCERTAIN DUE TO THE NATURE OF THE INJURY,
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LIQUIDATED DAMAGES IN THE AMOUNT OF $50,000 FOR EACH VIOLATION;
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(III) WHEN THE VIOLATION IS FOUND TO BE KNOWING AND
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WILLFUL, PUNITIVE DAMAGES IN AN AMOUNT DETERMINED BY THE COURT;
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(IV)
NOMINAL DAMAGES;
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(V)
OTHER RELIEF AS THE COURT DEEMS APPROPRIATE,
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INCLUDING REASONABLE COURT COSTS AND EXPENSES; AND
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(VI)
REASONABLE ATTORNEY’S FEES.
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(3)
THIS SECTION MAY NOT BE CONSTRUED TO PRECLUDE THE
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BRINGING OF A CLASS ACTION LAWSUIT AGAINST A MANUFACTURER WHEN ITS
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CONDUCT IN VIOLATION OF THIS SECTION IS KNOWING AND WILLFUL.
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HOUSE BILL 1311
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect
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October 1, 2024.
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