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.)