A4146

An Act concerning the access of minors to certain online material and supplementing Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Digitized identification card” means a data file available on any mobile device, which has connectivity to the Internet, that allows the mobile device to download the data file from a State agency or an authorized agent of a State agency that contains all of the data elements visible on the face and back of a license or identification card and displays the current status of the license or identification card.

“Distribute” means to issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means.

“Division” means the Division of Consumer Affairs in the Department of Law and Public Safety.

“Educational entity” means a school district, charter school, renaissance school, non-public school, or institution of higher education.

“Entity” includes corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized entities.

“Individual” means a natural person residing in this State.

“Internet” means the same as the term is defined in P.L.1984, c.184 (C.2C:20-23).

“Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including, but not limited to, a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational entities and a social media platform that enables users to create a profile, upload posts, view the posts of other users, or otherwise interact with other users.

“Information content provider” means any individual or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any interactive computer service. This term also includes any individual or entity that materially contributes or participates in any illegal aspect of content provided by an information content provider, such as requesting or recommending certain illegal content or suggesting the information service provider to change or edit illegal content in any manner other than total deletion or removal, or any similar action that otherwise knowingly facilitates or furthers the provider’s publishing or distribution of content prohibited under P.L. , c. (C. ) (pending before the Legislature as this bill). “Information content provider” includes, but is not limited to, social media platforms that are an online service, Internet website, or application made available by a social media company for account holders to create a profile, upload posts, view the posts of other account holders, and interact with other account holders or users.

“Material harmful to minors” means any material that meets the following criteria, as determined by the division: (1) the average individual, 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 indecent interest; or (2) 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: (a) pubic hair, anus, vulva, genitals, or nipple of the female breast; (b) touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals; or (c) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act; or (3) the material taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

“Minor” means any individual under 18 years of age.

“News-gathering organization” means: (1) a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest; (2) a radio broadcast station, television broadcast station, cable television operator, or wire service; or (3) an employee, working in their capacity as an employee, of a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest, a radio broadcast station, television broadcast station, cable television operator, or wire service. A website or an interactive computer service is not deemed to be a news-gathering organization unless its primary business is as an information content provider, news publisher, or broadcaster, of current news and public interest.

“Publish” means to communicate or make information available to another individual or entity on a publicly available internet website.

“Substantial portion” means that following amounts with respect to each of the following interactive computer services: (1) for a social media platform, more than one-third of total user accounts contain any material harmful to minors, or more than one-third of the content on one or more user’s account on that platform contains material harmful to minors; (2) for a search engine, more than one-third of the webpages displayed in response to any user query contain any material harmful to minors, or more than one-third of the thumbnail images displayed in response to any user query contain any material harmful to minors; or (3) for any website or webpage, including a search engine, more than one-third of the total content on the website or on any individual webpage contains any material harmful to minors, except that when a website contains a hypertext link to a third-party website, the material on such third-party website shall not be considered toward the total percentage of material if that third-party website does not contain material harmful to minors and if such linking does not constitute an attempt to intentionally dilute the percentage calculation of material harmful to minors in order to evade the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

“Transactional data” means a sequence of information that documents an exchange, agreement, or transfer between an individual, entity, or third party that is used for the purpose of satisfying a request or event. “Transactional data” includes, but is not limited to, records from mortgage, education, and employment entities.

2. a. An entity shall not allow a minor to access an Internet website or individual webpage that contains a substantial portion of material harmful to minors unless:

(1) the entity verifies the age of each individual that attempts to access the Internet website or webpage using reasonable age verification methods as required pursuant to subsection b. of this section; and

(2) if the individual is determined to be a minor, the material contained on the Internet website or webpage is suitable to the minor, as determined by the standards established by the division pursuant to paragraph (2) of subsection c. of this section.

b. (1) An entity shall use reasonable age verification methods to verify the age of an individual that attempts to access material harmful to minors on any Internet website or individual webpage operated by, or on behalf of, the entity. Subject to the provisions of paragraph (2) of this subsection, the age verification method used by the entity may include:

(a) the use of a digitized information card;

(b) the use of an independent, third-party age verification service that compares the personal information entered by the individual to the material that is available from a commercially available database or aggregate of databases, which databases are regularly used by government agencies and businesses for the purpose of age and identity verification; or

(2) The division shall establish standards and guidelines concerning the reasonable methods of age verification that an entity shall be permitted to use for the purposes of this section. In developing the standards and guidelines, the division may consider such factors as technological feasibility, operational effectiveness of the age verification system, and the scale and number of users and the primary consumer use of an interactive computer service. An entity that employs an age verification method or system that is not consistent with the standards and guidelines set by the division shall be deemed to violate the provisions of this section.

(3) An entity or third party that performs the age verification required pursuant to this section shall not retain any identifying information of the individual after access has been granted to the material.

c. (1) The division shall establish and update, as necessary, standards and guidelines concerning the types of content that shall be considered material harmful to children for the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).

(2) As part of the standards and guidelines established pursuant to this subsection, the division shall also establish and update, as necessary, standards concerning the types of content that are suitable to minors of each of the following ages, which standards shall be based on the different degrees of material harm that such content may have on minors of such ages:

(a) minors under the age of 10 years;

(b) minors of the age of 10 or more years but less than 15 years; and

d. (1) This section shall not apply to any bona fide news or public interest broadcast, website video, report, or event and shall not be construed to affect the rights of a news-gathering organization.

(2) No interactive computer service, search engine, or cloud service provider in the business of providing access to or for the posting of user content on an Internet platform, website, network or social media platform shall be held to have violated the provisions of this section solely for providing access or connection to or from a website or other information or content on the Internet, or a facility, system, or network not under that provider's control, including transmission, downloading, storing, or providing access; provided, however, that an interactive computer service that is an information content provider for or that participates in a venture with, and knowingly benefits from, an entity in violation of subsection a. of this section regarding that entity’s knowing and intentional publishing or distribution of material harmful to minors, shall be liable for damages under section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

3. a. The division shall receive consumer complaints alleging a violation of, investigate alleged violations of, and enforce P.L. , c. (C. ) (pending before the Legislature as this bill) as outlined in this section. All civil penalties in this section shall be collected by the Director of Consumer Affairs in a summary proceeding before a court of competent jurisdiction pursuant to the provisions of the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). Prior to asserting a cause of action the division shall:

(1) notify the entity of the violation within 30 days of receiving a complaint of an alleged violation; and

(2) provide the entity with not less than 30 days to correct the alleged violation.

b. Any entity that violates any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) may be liable for a civil penalty, to be assessed by the court, of no more than $5,000 for each day of the violation occurs, beginning after the 30-day period set forth in paragraph (2) of subsection a. of this section. In addition to the remedies provided in this section, the division may request and the court may impose an additional civil penalty, not to exceed $10,000, for each violation in which an entity is found by the court to have knowingly failed to perform reasonable age verification methods to verify the age of individuals attempting to access the material.

c. Each violation may be treated as a separate violation or may be combined into one violation at the option of the division.

d. Any entity that violates any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liable to the division for all costs, expenses, and fees related to investigations and proceedings associated with the violation, including attorney fees.

e. If the court assesses a civil penalty pursuant to this section, the division shall be entitled to legal interest from the date of imposition of the penalty until paid in full.

f. The division shall be entitled to such penalties, fines, or fees as may be authorized pursuant to this section in any successful enforcement action pursuant to this section for a violation of P.L. , c. (C. ) (pending before the Legislature as this bill). Any monies collected pursuant to this section for a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deposited into the fund created pursuant to section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).

4. a. An individual may bring an action against an entity that violates any provision of P.L. , c. (C. ) (pending before the Legislature as this bill). An action pursuant to this subsection shall be brought in the Superior Court of the county in which the individual bringing the action resides.

b. If a court finds that an entity has violated any provision of P.L. , c. (C. ) (pending before the Legislature as this bill), the individual bringing an action pursuant to subsection a. of this section shall be entitled to:

(1) reasonable attorney fees and court costs;

(2) up to $2,500 per instance of violation; and

(3) if the violation resulted from a minor accessing material harmful to minors, compensatory damages and damages for emotional pain and suffering, if the conduct of the defendant is found to be willful, wanton, or reckless.

5. a. The Director of the Division of Consumer Affairs shall establish and administer a fund for the purpose of providing aid in the investigation of cyber-crimes involving the exploitation of children.

b. The fund shall consist of the moneys received by the division pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), as well as any other moneys that may be made available for the fund.

c. Not more than five percent of the moneys deposited into the fund during any State fiscal year may be used to pay the administrative costs of the Division of Consumer Affairs during that fiscal year.

d. Any law enforcement agency in the State may submit an application to the Division of Consumer Affairs for funds to defray any expenses involved in the investigation and prosecution of cyber-crimes involving the exploitation of children, in accordance with procedures specified by the division.

6. The Division of Consumer Affairs shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), such rules and regulations as are necessary to effectuate the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).

7. This act shall take effect immediately.

STATEMENT

This bill requires imposes several requirements on entities that operate certain Internet websites and webpages, including requiring the entity to verify the age of all State residents that attempts to access the website or webpage and prohibiting minors from accessing certain material that is not suitable to minors.

Specifically, the bill provides that an entity may not allow a State resident under the age of 18 years to access an Internet website or an individual webpage that contains a “substantial portion” of material harmful to minors, as defined in the bill, unless: (1) the entity verifies the age of each resident that attempts to access the Internet website or webpage using reasonable age verification methods; and (2) if the resident is determined to be a minor, the material contained on the Internet website or webpage is suitable to the minor, as determined by the Division of Consumer Affairs (division) in the Department of law and Public Safety. For the purposes of this bill, “substantial purpose” means that following amounts with respect to each of the following interactive computer services: (1) for a social media platform, more than one-third of total user accounts contain any material harmful to minors, or more than one-third of the content on one or more user’s account on that platform contains material harmful to minors; (2) for a search engine, more than one-third of the webpages displayed in response to any user query contain any material harmful to minors, or more than one-third of the thumbnail images displayed in response to any user query contain any material harmful to minors; or (3) for any website or webpage, including a search engine, more than one-third of the total content on the website or on any individual webpage contains any material harmful to minors.

The bill also provides that an entity or third party that performs the required age verification may not retain any identifying information of the individual after access has been granted to the material.

Under this bill, an entity is required to use reasonable age verification methods that comply with standards and guidelines established by the division. However, the bill provides that the permitted age verifications methods may generally include: (1) use of a digitized information card; (2) verification through an independent, third-party age verification service that compares the personal information entered by the individual who is seeking access to the material that is 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; or (3) any available, reasonable method that relies on public or private transactional data to verify the age of the individual attempting to access the material. In developing the standards and guidelines concerning the permitted methods of age verification, the division may consider such factors as technological feasibility, operational effectiveness of the age verification system, and the scale and number of users and the primary consumer use of an interactive computer service.

Under this bill, the division would also be required to establish standards and guidelines to determine the types of content that would be deemed “material harmful to minors,” as defined in the bill. Additionally, the division would also be required to determine the types of content that would be deemed suitable to minors of each of the following ages, which standards would be based on the different degrees of material harmful that such content may have on minors of such ages: (1) minors under the age of 10 years; (2) minors over the age of 10 years but less than 15 years; and (3) minors from the age of 15 years but less than 18 years.

This bill would not apply to any bona fide news or public interest broadcast, website video, report, or event. The bill also provides that interactive computer services, search engines, and certain cloud service providers would not be deemed to violate the provisions of this bill solely for providing access or connection to or from a website or other information or content on the Internet, or a facility, system, or network, unless the interactive computer service participates in a venture with, and knowingly benefits from, an entity in violation of this bill, regarding an entity’s knowing and intentional publishing or distribution of material harmful to minors.

Under the bill, the division is required to receive consumer complaints related to, investigate alleged violation of, and enforce the provisions of this bill. The division would be entitled to any penalties, fines, or fees collected for a violation, which monies would be deposited into a fund, established by this bill, to provide aid in the investigation of cyber-crimes involving the exploitation of children. State law agencies may apply for monies from this fund in a manner prescribed by the division.

Before initiating an enforcement action, the bill requires the division to provide written notice identifying and explaining the basis for each alleged violation to be enforced. Thereafter, an entity receiving notice may prevent the need for an enforcement action by curing the violation. If the entity does not cure a violation, the division may initiate a civil action as provided in the bill.

The division is authorized to impose a civil penalty of up to $5,000 for each violation or to initiate a civil suit in Superior Court. A court may grant an additional $10,000 per violation. If the division proves a violation, the division is entitled to reasonable attorney fees, court costs, and investigative fees.

Additionally, the bill permits an individual to bring an action in the Superior Court against an entity for failure to comply with the provisions of this bill. If the suit is successful, an individual would be entitled to reasonable attorney fees and court costs. An individual would also be entitled to up to $2,500 per instance of violation, and if the violation resulted from a minor accessing material harmful to minors, may include compensatory damages and damages for emotional pain and suffering, provided the conduct of the defendant is found to be willful, wanton, or reckless.