hb4476 intr

H. B. 4476

(By Delegates Staton, Amores, Dalton, Wills,
Webb, Faircloth and Smirl)

[Originating in the House Committee on the Judiciary]

[February 9, 2000]

A BILL to amend article three-c, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section twenty-a, relating to prohibiting state employees from accessing a nonpublic computer of a state agency and causing obscene matter to be communicated, delivered or transmitted; and providing for punitive action.

Be it enacted by the Legislature of West Virginia:

That article three-c, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section twenty- a, to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.

§61-3C-20a. Use of state computer to originate, communicate or retrieve obscene matter.

(a) For the purposes of this section the words or terms defined in this subsection have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

(1) "Chat" means software that provides the ability to communicate using a computer keyboard in real-time with other persons on a network of computers like the internet or an intranet.

(2) "Communication and information retrieval methods" means methods that are used to originate, transmit or receive text, sound, pictures or moving video images over the internet. The methods include, but are not limited to, (A) electronic mail; (B) automatic mailing list services; (C) newsgroups; (D) chat; and (E) use of the world wide web to search for and retrieve information stored in remote computers.

(3) "Internet" means a worldwide interconnection of individual computer networks operated by government, industry, academia, and private parties.

(4) "Obscene matter" means matter that:

(A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest;

(B) An average person, applying contemporary adult community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and

(5) "Punitive action" means any action which may lead to dismissal, demotion, suspension, transfer, reduction in salary, or written reprimand for purposes of punishment.

(6) "State employee" means any person hired for permanent employment, either full or part-time, by any department, agency, commission or board of the state.

(7) "World wide web" means an international, virtual-network-based information service composed of internet host computers that provide on-line information in specially formatted documents using hypertext markup language (HTML). The world wide web supports links to other documents, as well as graphics, audio, and video files.

(b) Any state employee who deliberately accesses any nonpublic computer of an agency of the state of West Virginia that is exclusively for the use of the government of the state of West Virginia and uses communication and information retrieval methods to cause obscene matter to be communicated, delivered or transmitted is subject to punitive action under any applicable administrative procedures.

(c) This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the state of West Virginia.

(d) No punitive action may be imposed under this section unless action to impose a punitive action is begun within one year of the date of the prohibited conduct or the date of the discovery of the prohibited conduct.