hb3172 intr

H. B. 3172

(By Delegates Howard, Armstead, Hamilton,
Carmichael, Calvert and Louisos)

[Introduced February 21, 2003; referred to the

Committee on the Judiciary.]

A BILL to amend chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-j, relating to establishing the child internet protection act.

Be it enacted by the Legislature of West Virginia:

That chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-j, to read as follows:

ARTICLE 2J. CHILD INTERNET PROTECTION ACT.

§18-2J-1. Short title.

This article shall be known and may be cited as the "Child Internet Protection Act."
§18-2J-2. Legislative findings and purpose.

The Legislature finds and declares that:

(1) The state desires to protect children from exposure to obscenity, child pornography, and material harmful to minors;

(2) The state desires to prevent any user from accessing obscene material and child pornography within a public school or public library setting;
(3) There is a need to balance computer access to the internet against the need and duty to protect children from contact with sexual predators and access to obscene material, child pornography, and material harmful to minors;

(4) Pornography in a public library or school setting can create a hostile environment constituting sexual harassment;

(5) The state desires to take reasonable steps to prevent a hostile or dangerous environment in public schools and public libraries; to prevent sexual harassment of students, library patrons, and other persons; to deter or prevent public sexual acts; and deter or prevent crime in and around public schools and libraries;

(6) The general welfare, health, morals, and safety of the citizens of this state will be promoted by the enactment of this legislation;

(7) The purpose of this article is to protect minors from exposure to obscenity, child pornography, and materials that are harmful to minors, and to prevent, eliminate, and/or control the adverse secondary effects created by unrestricted access to the Internet. It is not the intent of this legislation to restrict access to materials protected by the First Amendment to the United States Constitution; and

(8) A further purpose of this article is to comply with federal regulations as set forth in 20 U.S.C. § 9134 and 47 U.S.C. § 254(h).
§18-2J-3. Definitions.

The following words and phrases when used in this article shall have the meanings given to them in this section unless the context clearly indicates otherwise:

(a) "Aggrieved parent or guardian" means the parent or guardian of: (1) A student who attends a public school within the school district which is the subject of an enforcement action; or (2) a child under eighteen years of age who has library privileges at a public library which is the subject of an enforcement action;

(b) "Child pornography" means any depiction, actual or simulated, visual or verbal, of a child under the age of eighteen years of age, engaging in sexual intercourse, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity, if the nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view the depiction;

(d) "Harmful to minors" means that the quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, that is: (1) Patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (2) taken as a whole, lacks serious literary, artistic, political, educational or scientific value for minors;

(e) "Internet-use policy" means a policy for internet usage which is approved and adopted by a school board, or a governing body of a public library;

(f) "Minor" means anyone under the age of eighteen years of age;

(g) "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state;

(h) "Obscene" means any material or performance which: (1) The average person, applying contemporary community standards, would find the subject matter, taken as a whole, appeals to the prurient interest; and (2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and (3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value;

(i) "Prosecuting attorney" means the attorney representing the county in which the school district or public library, which is the subject of the enforcement action, is situated;

(j) "Public library" means a library, other than a public school district library, which is established or maintained by the state, a political subdivision or an authority of which receives state aid;

(k) "Sadomasochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed;

(l) "School board" means the county board of education;

(m) "State superintendent" means the state superintendent of schools or his or her duly appointed designee;

(n) "Sexual conduct" means any representation of masturbation, homosexuality, sexual intercourse, fellatio, cunnilingus, bestiality, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if the person be a female, breast;

(o) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal. §18-2J-4. School district internet policies.
(a) Internet-use policy. -- Within sixty days after the effective date of this article, each school board shall establish an internet-use policy for the international network of computer systems, commonly known as the internet. At a minimum, the policy shall contain provisions which:

(1) Reasonably prevent students of the school district or any other person from using any computer equipment and communications services owned or leased by the school district for sending, receiving, viewing or downloading material, the character of which is reasonably believed to be obscene or child pornography or harmful to minors, and which prohibit the use of the equipment and services for those purposes;

(2) Establish appropriate measures to be taken against students and other persons who willfully violate the school district's internet-use policy;

(3) Provide expedited review and resolution of a claim that the policy is denying a student or other authorized person access to material that is not within the prohibition of the internet-use policy;
(b) Implementation and enforcement. -- The school board shall take the steps as it considers appropriate to implement and enforce the school district policy, including, but not limited to: (1) Use of software programs reasonably designed to block access to material, the character of which is such that it is reasonably believed to be obscene or child pornography or harmful to minors; or (2) selection of on-line servers that block access to material reasonably believed to be obscene or child pornography or harmful to minors;

(c) Adoption of additional policy. -- A school board may adopt a policy that seeks to prevent student access to internet material which is pervasively indecent and vulgar or which is not reasonably related to legitimate pedagogical concerns, as specifically defined by the policy.

(d) Copy of policy for parents or guardians. -- Each school district, shall annually provide the parent or guardian of each student with a copy of the internet-use policy it has adopted under this section.
§18-2J-5. Public library internet policies.

(a) Internet-use policy. -- Within sixty days after the effective date of this article, the governing body of every public library shall establish an internet-use policy for the international network of computer systems, commonly known as the internet. At a minimum, the policy shall contain provisions which:

(1) Are reasonably designed to prevent and prohibit persons from using the library's computer equipment and communications services for sending, receiving, viewing or downloading material, the character of which is reasonably believed to be obscene or child pornography or harmful to minors;

(2) Establish appropriate measures to be taken against persons who willfully violate the policy;

(b) Implementation and enforcement of policy. -- The governing body of the public library shall take the necessary steps as it considers appropriate to implement and enforce the public library's policy, including, but not limited to, the following:

(1) Use of software programs designed to block access to material that it is reasonably believed to be obscene or child pornography or harmful to minors; or (2) selection of on-line servers that block access to material reasonably believed to be obscene or child pornography or harmful to minors.

(c) Expedited review procedure. -- Each public library shall establish an expedited procedure for the review and resolution, by personnel designated for this purpose, of any claim that a software program or other policy of the public library is denying a user access to material that is not within the prohibition of the internet-use policy adopted under this article for that user, included in this procedure shall be a provision requiring the user to be notified of the decision in writing within two business days of the request for review. This subsection may not apply to the selection of an on-line server by the public library.

(d) Appeal. -- A person aggrieved by an adverse decision of a public library regarding access to internet material or by failure of a public library to make a decision within two business days after making a request for internet access may file an appeal with the circuit court of the county in which the public library is situated. The court shall hold a de novo hearing within three business days after the appeal is filed and shall issue a final decree within twenty hours after the close of the hearing.

§18-2J-6 . Powers and duties of attorney general and state superintendent.

The attorney general and the state superintendent shall consult with and assist any public library or school district that requests assistance in the development and implementation of an internet access policy under this article.
§18-2J-7 . Reports.

(a) Copy of policy to be filed. -- Within sixty-five days after the effective date of this article, the county superintendent of each school district and the chief administrative officer of each public library shall file with the state superintendent a copy of the internet-use policy of the school district or public library which has been adopted under this article. Each revision to the internet-use policy shall be transmitted to the state superintendent in accordance with section eight of this article.

(b) Report to general assembly. -- Within ninety days after the deadline for the initial filing under subsection (a) above and in December of each subsequent year, the state superintendent shall submit a report to the chairman and the minority chairman of the education committee of the Senate and the chairman and minority chairman of the education committee of the House of Delegates which summarizes the internet-use policies and any revisions thereof filed with the state superintendent under this article.
§18-2J-8 . Enforcement.

(a) Review of internet-use policy. -- The state superintendent shall review each internet-use policy filed under this article and each revision and shall disapprove any policy or revision that is not reasonably designed to achieve the purposes of subsection (a), section four-a of this article, in the case of school districts, or subsection (a), section five of this article, in the case of public libraries.

(b) Revision of policy. -- Except as otherwise provided in subsection (c) of this section, no revision of an internet-use policy shall be implemented unless and until the revision is approved by the state superintendent: Provided, That if the state superintendent fails to disapprove the revision within sixty days after submission, the public library or school district may proceed with the implementation of the revision of its internet-use policy.

(c) Constitutional defect. -- A public library or school district may cease to enforce any portion of its acceptable use policy and implement a revised policy immediately upon the submission of a revised policy to the state superintendent, together with a written opinion from the attorney general or other legal counsel for the public library or school district advising that the revision is necessary to correct a constitutional defect in the internet-use policy. The state superintendent shall approve or disapprove review of a revised policy submitted under this subsection within ten days of submission.

(d) Withholding of funding. -- The state superintendent shall withhold state funding from any school district or public library that fails to submit an internet-use policy within the time prescribed in this article or which submits an internet-use policy or any required revision that is not reasonably designed to achieve the purposes of subsection (a), section four, in the case of school districts, or subsection (a), section five, in the case of public libraries, of this article.

(e) Revising disapproved policy. -- If the state superintendent determines that an internet-use policy or any revision is not reasonably designed to achieve the purposes of subsection (a), section four, in the case of school districts, or subsection (a), section five, in the case of public libraries, of this article, the state superintendent shall afford the school distract or public library a twenty-day period for developing and submitting a revised policy before withholding any funds under this section. The state superintendent may extend the time for submission of a revised internet-use policy for good cause.

(f) Appeal. -- If the state superintendent disapproves an internet-use policy or revision under this section, the aggrieved public library or school district may appeal the decision to the circuit court of the county in which the school is situated. The state superintendent may not withhold any funding under this section during the course of the appeal.

(g) Enforcement. -- The state superintendent, the prosecuting attorney, an aggrieved parent or guardian, or a taxpayer residing in the district shall have standing to seek a court order directing the school board or public library to establish and file an internet-use policy with the state superintendent or to enforce an internet-use policy filed with the state superintendent. The court shall issue an appropriate order if it determines that the school board or public library has failed to file an internet-use policy or if the school board or public library is not enforcing or is substantially disregarding its policy.
§18-2J- 9. Construction.
This article does not authorize a school board or governing body of a public library to adopt an internet-use policy which violates the constitution of the United States or the constitution of West Virginia.

§18-2J-10. Disabling blocking technology for use by certain persons.

Notwithstanding any other provision of this article to the contrary, an administrator, supervisor or other personnel designated for this purpose may disable the blocking technology to enable unfiltered access to a site that does not fall within the prohibitions of the internet-use policy.

NOTE: The purpose of this bill is to establish the Internet Child Protection Act.

This article is new; therefore, strike-throughs and underscoring have been omitted.