Bill Text: MS HB734 | 2024 | Regular Session | Introduced
Bill Title: Child pornography; replace term in Mississippi Code with "child sexual abuse material".
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-03-05 - Died In Committee [HB734 Detail]
Download: Mississippi-2024-HB734-Introduced.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary B
By: Representative Eubanks
House Bill 734
AN ACT TO AMEND SECTIONS 37-11-81, 39-3-25 AND 99-1-29, MISSISSIPPI CODE OF 1972, TO REPLACE THE TERM "CHILD PORNOGRAPHY" WITH "CHILD SEXUAL ABUSE MATERIAL"; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 37-11-81, Mississippi Code of 1972, is amended as follows:
37-11-81. (1) The state, or
any of its agencies, a school district, charter school, the Mississippi School of
the Arts, the Mississippi School for Mathematics and Science, the Mississippi Virtual
Public School, the Mississippi School for the Deaf or the Mississippi School for
the Blind ( * * *
"the contracting party") may offer digital or online resources or databases
to students in kindergarten through twelfth grade only if the vendor or other person
or entity providing the resources verifies that all the resources will comply with
the provisions of subsection (2) of this section.
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a person from sending, receiving, viewing or downloading materials that are:
(i) Child * * * sexual abuse materials;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials,
as * * *
described in paragraph (c) of this * * * subsection;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Block, or otherwise
prohibit and prevent, access to obscene materials, inappropriate materials, materials
that are sexually oriented or materials that depict, describe or promote child * * * sexual abuse materials or child
sexual exploitation.
(c) For the purposes of
this * * * section,
material is obscene, if:
(i) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and
(ii) The material taken as a whole lacks serious literary, artistic, political or scientific value; and
(iii) The material depicts or describes in a patently offensive way, sexual contact specifically defined in items 1 through 5 below:
1. Acts of sexual intercourse of any kind, normal or perverted, actual or simulated;
2. Acts of masturbation;
3. Acts involving excretory functions or lewd exhibition of the genitals;
4. Acts of bestiality or the fondling of sex organs of animals; or
5. Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.
(3) (a) The provisions of this section shall take precedence over any other provision of law to the contrary in a contract between the contracting party and a vendor or other person or entity providing digital or online resources or databases. Notwithstanding any other provision of law to the contrary, in a contract between the contracting party and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the contracting party shall withhold further payments, if any, to the provider pending verification of compliance.
(b)
No Internet service provider, or its affiliates or subsidiaries, search engine,
or cloud service provider shall be held to have violated the provisions of this * * * section solely for providing services
that do not constitute the direct provision of digital or online resources or databases
to students in kindergarten through twelfth grade.
(c) The provisions of this section do not apply to the use of digital or online resources or databases by a student enrolled in a Mississippi institution of higher education or a Mississippi community or junior college, including dual-enrolled students.
(d) Upon a first uncured occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with this section, the contracting party shall consider the provider's noncompliance to be a breach of contract.
(e) Upon a second uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contracting party is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the contracting party such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(f) Upon a third uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the contracting party is entitled to a complete refund of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall withhold any future payments that may be due to the provider, and the provider must return to the contracting party all amounts previously paid to the provider under the contract.
(4) The Attorney General may investigate compliance with this section. The contracting party must report to the Attorney General a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the contracting party learns of the provider's noncompliance. Such a report shall constitute a public record under the Mississippi Public Records Act.
SECTION 2. Section 39-3-25, Mississippi Code of 1972, is amended as follows:
39-3-25. (1) The state, or
any of its agencies, or a public library ( * * * "the contracting party") may
offer digital or online resources or databases to minors only if the vendor or other
person or entity providing the resources verifies that all the resources will comply
with the provisions of subsection (2) of this section. For purposes of this section,
the term "minor" means any person under the age of eighteen (18).
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a minor from sending, receiving, viewing or downloading materials that are:
(i) Child * * * sexual abuse materials;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials,
as * * *
described in Section 37-11-81;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Block, or otherwise
prohibit and prevent, a minor from accessing obscene materials, inappropriate materials,
materials that are sexually oriented or materials that depict, describe or promote
child * * *
sexual abuse materials or child sexual exploitation.
(3) (a) The provisions of this section take precedence over any provision in a contract between the contracting party and a vendor or other person or entity providing digital or online resources or databases to the contrary. Notwithstanding any provision in a contract between the contracting party and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the contracting party shall withhold further payments, if any, to the provider pending verification of compliance.
(b) No Internet service
provider, or its affiliates or subsidiaries, search engine, or cloud service provider
shall be held to have violated the provisions of this * * * section solely for providing services
that do not constitute the direct provision of digital or online resources or databases
to minors.
(c) The provisions of this section do not apply to the use of digital or online resources or databases by a student enrolled in a Mississippi institution of higher education or a Mississippi community or junior college, including dual-enrolled students.
(d) Upon a first uncured occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with this section, the contracting party shall consider the provider's noncompliance to be a breach of contract.
(e) Upon a second uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contracting party is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the contracting party such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(f) Upon a third uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the contracting party is entitled to a complete refund of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall withhold any future payments that may be due to the provider, and the provider must return to the contracting party all amounts previously paid to the provider under the contract.
(4) Prior to withholding any
payment for noncompliance under this * * * section, any contracting party must provide
to the database vendor:
(i) Written notice of the nature of the violation, including reasonable identification of the prohibited material and the manner of its access.
(ii) Thirty (30) days to present evidence that the acts alleged to constitute a violation are not a breach of the provider's obligation.
(iii) Thirty (30) days to cure any occurrence of noncompliance.
(iv) After having exhausted the administrative remedies referenced in subparagraphs (i) – (iii), the opportunity to tender the disputed contract funds into the registry of a court of competent jurisdiction and to seek a judicial determination of the rights under the contract.
(5) The Attorney General may investigate compliance with this section. The contracting party must report to the Attorney General a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the contracting party learns of the provider's noncompliance. Such a report shall constitute a public record under the Mississippi Public Records Act.
SECTION 3. Section 99-1-29, Mississippi Code of 1972, is amended as follows:
99-1-29. (1) In any
criminal proceeding, evidence that constitutes child * * * sexual abuse material prohibited
under Sections 97-5-31 and 97-5-33 * * * shall remain in the
care, custody, and control of either the prosecution or the court.
(2) (a) Notwithstanding Rule
9.04 of the Mississippi Uniform Circuit and County Court Rules, a court shall
deny any request by the defendant in a criminal proceeding to copy, photograph,
duplicate, or otherwise reproduce any property or material that constitutes
child * * *
sexual abuse material; however, the prosecution shall be required to
make the property or material reasonably available to the defendant.
(b) For the purposes of this section, property or material shall be deemed to be reasonably available to the defendant if the prosecution provides ample opportunity at a government facility for inspection, viewing, and examination of the property or material by the defendant, the defendant's attorney, and any person the defendant may seek to qualify to furnish expert testimony at trial.
SECTION 4. This act shall take effect and be in force from and after July 1, 2024.
