GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
S	2
SENATE BILL 1032
Judiciary II Committee Substitute Adopted 4/25/01

Short Title:	Minors' Internet Access.	()	
Sponsors:	     	
Referred to:	     	
April 5, 2001

A BILL TO BE ENTITLED
AN ACT REQUIRING PUBLIC LIBRARIES AND SCHOOLS TO IMPLEMENT POLICIES TO PROTECT MINORS FROM OBSCENE MATERIAL OR MATERIAL HARMFUL TO MINORS THROUGH USE OF THE INTERNET, TO PROHIBIT THE DISSEMINATION OF OBSCENITIES BY COMPUTER TRANSMISSION, TO INCREASE THE PENALTIES FOR CERTAIN CRIMINAL OFFENSES CONCERNING MINORS AND OBSCENITY, TO PROHIBIT THE USE OF STATE COMPUTERS TO ACCESS OBSCENITIES, AND TO REGULATE CERTAIN USES OF STATE COMPUTERS. 

The General Assembly of North Carolina enacts:
SECTION 1.  Chapter 125 of the General Statutes is amended by adding a new section to read:
"Article 4.
"Minors' Internet Access.
"§ 125-20. Protection of minors from certain material on the Internet.
Each public library must adopt a policy governing acceptable use of the Internet by library users. The policy shall outline how the library will assist children in accessing educational resources on the Internet and work to prevent children’s access to materials that are harmful to minors on the Internet. The policy shall be approved by the library’s governing authority and shall be filed with the State Library in order to receive grants from the Aid to Public Libraries Fund."
SECTION 2.  Chapter 115C of the General Statutes is amended by adding a new section to read:
"§ 115C-102.9.  Protection of minors from certain material on the Internet.
(a)	Policy and Procedures. – On or before January 1, 2002, the State Board of Education shall adopt a policy regarding minors' access to the Internet. At a minimum, the policy shall contain provisions that seek to prevent access by minors to obscene material and material that is harmful to minors and establish appropriate measures to be taken against persons who violate the policy. The policy shall include either or both of the following features:
(1)	Equipping the computers with software that will limit minors' ability to gain access to obscene materials or material harmful to minors.
(2)	Purchasing Internet connectivity from an Internet service provider that provides filter services to limit access to obscene materials or material harmful to minors.
(b)	Implementation and Compliance. – The Department of Public Instruction shall make the policy available to all local boards of education that shall be responsible for implementing the policy. Each local board of education shall report annually to the State Board on its efforts to implement the provisions set out in subsection (a) of this section.
(c)	Technical Assistance or Information. – The Department of Public Instruction shall provide technical assistance or information to any public school to aid the school in evaluating available and developing technologies that may be used to comply with the provisions of this section."
SECTION 3.  G.S. 14‑190.1 reads as rewritten:
"§ 14‑190.1.  Obscene literature and exhibitions.
(a)	It is unlawful for any person to intentionally disseminate obscenity. A person disseminates obscenity within the meaning of this Article if the person:
(1)	Sells, delivers, makes accessible to another person by computer, or provides or offers or agrees to sell, deliver, make accessible to another person by computer, or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
(2)	Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3)	Publishes, exhibits or otherwise makes available anything obscene; or
(4)	Exhibits, presents, rents, sells, delivers or provides; or offers or agrees to exhibit, present, rent or to provide: any obscene still or motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever form which is a representation, embodiment, performance, or publication of the obscene.
(b)	For purposes of this Article any material is obscene if:
(1)	The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and
(2)	The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
(3)	The material lacks serious literary, artistic, political, or scientific value; and
(4)	The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.
(c)	As used in this Article, "sexual conduct" means:
(1)	Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or
(2)	Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or
(3)	An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
(d)	Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences.
(e)	It is unlawful for any person to knowingly and intentionally create, buy, procure or possess obscene material with the purpose and intent of disseminating it unlawfully.
(f)	It is unlawful for a person to advertise or otherwise promote the sale of material represented or held out by said person, firm or corporation as obscene.
(g)	Violation of this section is a Class H felony.
(h)	Obscene material disseminated, procured, or promoted in violation of this section is contraband.
(i)	Nothing in this section shall be deemed to preempt local government regulation of the location or operation of sexually oriented businesses to the extent consistent with the constitutional protection afforded free speech.
(j)	For purposes of this Article, the term "person" means an individual, a firm, a partnership, an association, a corporation, or any other organization or group acting as a unit."
SECTION 4.  G.S. 14‑190.6 reads as rewritten:
"§ 14‑190.6.  Employing or permitting minor to assist in offense under Article.
Every person 18 years of age or older who intentionally, in any manner, hires, employs, uses or permits any minor under the age of 16 years to do or assist in doing any act or thing constituting an offense under this Article and involving any material, act or thing he knows or reasonably should know to be obscene within the meaning of G.S. 14‑190.1, shall be guilty of a Class H felony."
SECTION 5.  G.S. 14‑190.7 reads as rewritten:
"§ 14‑190.7.  Dissemination to minors under the age of 16 years.
Every person 18 years of age or older who knowingly disseminates to any minor under the age of 16 years any material which he knows or reasonably should know to be obscene within the meaning of G.S. 14‑190.1 shall be guilty of a Class H felony."
SECTION 6.  G.S. 14‑190.8 reads as rewritten:
"§ 14‑190.8.  Dissemination to minors under the age of 13 years.
Every person 18 years of age or older who knowingly disseminates to any minor under the age of 13 years any material that the person knows or reasonably should know to be obscene within the meaning of G.S. 14‑190.1 shall be punished as a Class G felon."
SECTION 7.  G.S. 14‑190.13 reads as rewritten:
"§ 14‑190.13.  Definitions for certain offenses concerning minors.
The following definitions apply to G.S. 14‑190.14, displaying material harmful to minors; G.S. 14‑190.15, disseminating or exhibiting to minors harmful material or performances; G.S. 14‑190.16, first degree sexual exploitation of a minor; G.S. 14‑190.17, second degree sexual exploitation of a minor; G.S. 14‑190.17A, third degree sexual exploitation of a minor; G.S. 14‑190.18, promoting prostitution of a minor; and G.S. 14‑190.19, participating in prostitution of a minor. 
(1)	Harmful to Minors. – That quality of any material or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics:
a.	The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest of minors in sex; and
b.	The average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors; and
c.	The material or performance lacks serious literary, artistic, political, or scientific value for minors.
(2)	Material. – Pictures, drawings, video recordings, films, digital images made accessible to another person by computer, or other visual depictions or representations but not material consisting entirely of written words.
(3)	Minor. – An individual who is less than 18 years old and is not married or judicially emancipated.
(4)	Prostitution. – Engaging or offering to engage in sexual activity with or for another in exchange for anything of value.
(5)	Sexual Activity. – Any of the following acts:
a.	Masturbation, whether done alone or with another human or an animal.
b.	Vaginal, anal, or oral intercourse, whether done with another human or with an animal.
c.	Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.
d.	An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in revealing or bizarre costume.
e.	Excretory functions; provided, however, that this sub‑subdivision shall not apply to G.S. 14‑190.17A.
f.	The insertion of any part of a person's body, other than the male sexual organ, or of any object into another person's anus or vagina, except when done as part of a recognized medical procedure.
(6)	Sexually Explicit Nudity. – The showing of:
a.	Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast, except as provided in G.S. 14‑190.9(b); or
b.	Covered human male genitals in a discernibly turgid state."
SECTION 8.  G.S. 14‑190.14(b) reads as rewritten:
"(b)	Punishment. – Violation of this section is a Class 1 misdemeanor. Each day's violation of this section is a separate offense."
SECTION 9.  G.S. 14‑190.15 reads as rewritten:
"§ 14‑190.15.  Disseminating harmful material to minors; exhibiting harmful performances to minors.
(a)	Disseminating Harmful Material. – A person commits the offense of disseminating harmful material to minors if, with or without consideration and knowing the character or content of the material, the person:
(1)	Sells, furnishes, presents, makes accessible by computer, or distributes to a minor material that is harmful to minors; or
(2)	Allows a minor to review, peruse, or access by computer material that is harmful to minors.
(b)	Exhibiting Harmful Performance. – A person commits the offense of exhibiting a harmful performance to a minor if, with or without consideration and knowing the character or content of the performance, the person allows a minor to view a live performance that is harmful to minors.
(c)	Defenses. – Except as provided in subdivision (3), a mistake of age is not a defense to a prosecution under this section. It is an affirmative defense to a prosecution under this section that:
(1)	The defendant was a parent or legal guardian of the minor.
(2)	The defendant was a school, church, museum, public library, governmental agency, medical clinic, or hospital carrying out its legitimate function; or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of the employee's or agent's employment.
(3)	Before disseminating or exhibiting the harmful material or performance, the defendant requested and received a drivers license, student identification card, or other official governmental or educational identification card or paper indicating that the minor to whom the material or performance was disseminated or exhibited was at least 18 years old, and the defendant reasonably believed the minor was at least 18 years old.
(3a)	The material made accessible to another person by computer:
a.	Included on the first page of the text set out from surrounding written or graphical material so as to be conspicuous the following statement: 'Warning: Viewer discretion and parental guidance is advised. These materials may be harmful to minors.'; and
b.	Is located at a registered web site with a domain address assigned only to adult-oriented sites in compliance with the policies established by the Internet Corporation for Assigned Names and Numbers (ICANN), the United States Department of Commerce, or any other entity approved by the federal government to assign domain names.
(4)	The dissemination was made with the prior consent of a parent or guardian of the recipient.
(d)	Punishment. – Violation of this section is a Class 1 misdemeanor."
SECTION 10.  G.S. 14‑190.16(d) reads as rewritten:
"(d)	Punishment and Sentencing. – Violation of this section is a Class C felony."
SECTION 11.  G.S. 14‑190.17(d) reads as rewritten:
"(d)	Punishment and Sentencing. – Violation of this section is a Class E felony."
SECTION 12.  G.S. 14‑190.17A(d) reads as rewritten:
"(d)	Punishment and Sentencing. –  Violation of this section is a Class H felony."
SECTION 13.  Article 26 of Chapter 14 of the General Statutes is amended by adding the following new section:
"§ 14-202.5.  Unlawful to access or disseminate obscenities on a governmental computer.
(a)	The following definitions apply in this section:
(1)	Computer. – Includes all of the following terms as they are defined in G.S. 14-453: computer, computer network, computer program, computer software, computer system, and data.
(2)	Government. – The State of North Carolina or any agency or political subdivision of the State.
(3)	Government computer. – A computer used for government purposes that is owned or leased in whole or in part or is otherwise under the control and general management of the State or any agency or political subdivision of the State.
(b)	Except to the extent required in conjunction with a bona fide government-approved research project or other government-approved undertaking, no person shall utilize a government computer to access, download, print, or store any information, infrastructure files, or services having obscene content. The approval for the research project or undertaking shall be in writing and signed by the appropriate governmental official. 
(c)	A violation of this section is a Class 1 misdemeanor and is also grounds for disciplinary action."
SECTION 14.  G.S. 14‑196 reads as rewritten:
"§ 14‑196.  Using profane, indecent or threatening language to any person by electronic communications; annoying or harassing by repeated electronic communications or making false statements by electronic communications.
(a)	It is unlawful for any person:
(1)	To use in electronic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation;
(2)	To use in electronic communications any words or language threatening to inflict bodily harm to any person or to that person's child, sibling, spouse, or dependent or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person;
(3)	To electronically communicate with another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called phone number or electronic address;
(4)	To electronically communicate and fail to hang up or disengage the connection with the intent to disrupt the service of another;
(5)	To electronically communicate with another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person electronically contacted or of any member of the person's family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass;
(6)	To knowingly permit any electronic communication device under the person's control to be used for any purpose prohibited by this section.
(b)	Any of the above offenses may be deemed to have been committed at either the place at which the electronic communication originated or at the place where the electronic communication was received. For purposes of this section, the terms 'electronic communications', 'electronically communicated', and 'electronically contacted' include communications made or received by way of a telephone answering machine or recorder, telefacsimile machine, computer  modem, electronic mail, and all of the following as defined in G.S. 14-453: computer, computer network, computer program, computer software, and computer system.
(c)	Anyone violating the provisions of this section is guilty of a Class 2 misdemeanor."
SECTION 15.  By January 1, 2002, the Department of Administration shall adopt rules governing the use of State computers, the Internet, and electronic mail by State employees to implement this act.
SECTION 16.  If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 17.  Sections 1, 2, 15, 16, and 17 of this act are effective when it becomes law. The remainder of this act becomes effective December 1, 2001, and applies to offenses committed on or after that date.