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Introduced Version - Originating in Committee Senate Bill 700 History

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Key: Green = existing Code. Red = new code to be enacted

Senate Bill No. 700

(By Senators Kessler, Browning, Chafin, Foster, Jenkins, Laird, Minard, Oliverio, Palumbo, Snyder, Stollings, Williams, Yost, Deem and Hall )

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[Originating in the Committee on the Judiciary; reported March 2, 2010.]

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A BILL to amend and reenact §61-8C-1 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §61-8C-6, all relating to updating the definition of "sexually explicit conduct" to include lascivious exhibition of the genitals, pubic or rectal areas of any person in a sexual context; granting the crimes against children unit of the State Police authority to issue administrative subpoenas in suspected cases of child pornography and soliciting minors; limiting authority to certain specific types of offenses; requiring disclosure by providers of internet service of certain subscriber information; providing for judicial review and enforcement; granting immunity for compliance by providers of internet service; limiting fees charged; and defining terms.

Be it enacted by the Legislature of West Virginia:
That 61-8C-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-8C-6, all to read as follows:
ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.
§61-8C-1. Definitions.
For the purposes of this article:
(a) "Minor" means any child under eighteen years of age.
(b) "Knowledge" means knowing or having reasonable cause to know which warrants further inspection or inquiry.
(c) "Sexually explicit conduct" includes any of the following, whether actually performed or simulated:
(1) Genital to genital intercourse;
(2) Fellatio;
(3) Cunnilingus;
(4) Anal intercourse;
(5) Oral to anal intercourse;
(6) Bestiality;
(7) Masturbation;
(8) Sadomasochistic abuse, including, but not limited to, flagellation, torture or bondage;
(9) Excretory functions in a sexual context; or
(10) Lascivious exhibition of the genitals, pubic or rectal areas of any person in a sexual context.
(d) "Person" means an individual, partnership, firm, association, corporation or other legal entity.
§61-8C-6. State Police authority to issue administrative subpoenas to providers of internet service in suspected cases of child pornography and soliciting a minor using a computer; and required
disclosures by providers of internet services.

(a) The Crimes Against Children unit of the West Virginia State Police is hereby designated the state law enforcement entity with authority to issue administrative subpoenas to providers of internet service;
(b) The superintendent shall designate the members of the unit who have individual authority to sign subpeonas authorized by the provision of this section;
(c) Administrative subpeonas authorized by this section may only be issued where reasonable cause exists to believe that an individual subscriber or customer of a provider of internet service has violated the provisions of section fourteen-b, article three-c of this chapter, or articles eight-a or eight-c of this chapter or of the United States with the same or similar essential elements.
(d) A provider of internet service shall provide to the West Virginia State Police Crimes Against Children unit upon receipt of an administrative subpeona authorized by the provisions of this section only the following information about the subscriber to or customer of such a service:
(1) name;
(2) address;
(3) local and long distance telephone connection records used for internet access, or records of session times and durations;
(4) length of service, including the start date, and types of service utilized;
(5) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(6) means and source of payment for such internet service, including any credit card or bank account number.
Under no circumstance shall the provisions of this section authorize the disclosure of the contents of wire or electric communications in electronic storage.
(e) If a provider of internet service which has been issued an administrative subpoena pursuant to this section refuses to produce any information that the subpoena requires, the person who isssued the subpoena may apply to the circuit court of the county in which the offense is believed to have occured or the circuit court of Kanawha County for the enforcement of the subpoena in the manner provided by law for the enforcement of a subpoena in a civil action.
(f) No cause of action shall lie in any court against any provider of internet service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a subpoena or court order under this section.
(g) If a provider of internet service which has been issued a subpoena pursuant to this section charges a fee for providing the information, the fee may not exceed the actual cost for providing the information.
(h) As used in this section, provider of internet service means any provider who provides subscribers with access to the internet or an electronic mail address, or both, but does not include a public library when it is engaged in providing access to the internet.
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(NOTE: §61-8C-6 is new; therefore, underscoring and strike- throughs have been omited.)



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