CORRECTIVE REPRINT
PRIOR PRINTER'S NO. 1386
PRINTER'S NO. 1564
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1295
Session of
2021
INTRODUCED BY SPONSORS WITHDRAWN, APRIL 27, 2021
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 27, 2021
AN ACT
Amending Titles 12 (Commerce and Trade) and 18 (Crimes and
Offenses) of the Pennsylvania Consolidated Statutes, in
commercial protection, providing for indecent deceptive trade
practices and imposing duties on the Secretary of Revenue and
the Attorney General; and, in prevention of human
trafficking, establishing the Indecent Deceptive Trade
Practices Fund.
This act may be referred to as the Human Trafficking and
Child Exploitation Prevention Act.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Part IV of Title 12 of the Pennsylvania
Consolidated Statutes is amended by adding a chapter to read:
CHAPTER 55
INDECENT DECEPTIVE TRADE PRACTICES
Sec.
5501. Scope of chapter.
5502. Definitions.
5503. Duties of retailers.
5504. Filter deactivation fee.
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5505. Warning regarding filter deactivation.
5506. Database or registry not required.
5507. Confidentiality.
5508. Remedies and affirmative defense.
5509. Unlawful practices and penalties.
5510. Live adult entertainment establishment admission fee.
5511. Applicability.
§ 5501. Scope of chapter.
This chapter relates to indecent deceptive trade practices.
§ 5502. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Cellular telephone." A communication device containing a
unique electronic serial number that is programmed into its
computer chip by its manufacturer and whose operation is
dependent on the transmission of that electronic serial number
along with a mobile identification number, which is assigned by
the cellular telephone carrier, in the form of radio signals
through cell sites and mobile switching stations.
"Child pornography." As defined in 18 U.S.C. § 2256(8)
(relating to definitions for chapter), which describes an
offense under 18 Pa.C.S. § 6312 (relating to sexual abuse of
children).
"Community." As defined in 18 Pa.C.S. § 5903(b) (relating to
obscene and other sexual materials and performances).
"Computer." As follows:
(1) An electronic, magnetic, optical, electrochemical or
other high speed data processing device performing logical,
arithmetic or storage functions.
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(2) The term includes a data storage facility or
communications facility directly related to or operating in
conjunction with the device under paragraph (1).
(3) The term does not include an automated typewriter or
typesetter, a portable hand-held calculator or other similar
device.
"Consumer." An individual who purchases or leases for
personal, family or household purposes an Internet-enabled
device.
"Data communications device." An electronic device that
receives electronic information from one source and transmits or
routes it to another, including a bridge, router, switch or
gateway.
"Filter." As follows:
(1) A filter described in section 5503(a) (relating to
duties of retailers).
(2) The term includes any of the following:
(i) Digital blocking capability, hardware or
software that restricts or blocks Internet access to
websites, electronic mail, chat or other Internet-based
communications based on category, site or content.
(ii) A digital blinder rack that can be deactivated
by a retailer upon the satisfaction of certain nominal
conditions required by adult consumers.
"Human trafficking." As described in 18 Pa.C.S. § 3011
(relating to trafficking in individuals).
"Internet." As defined in 31 U.S.C. § 5362(5) (relating to
definitions).
"Internet-enabled device." A cellular telephone, computer,
data communications device or other product manufactured,
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distributed or sold in this Commonwealth that provides Internet
access or plays a material role in distributing content on the
Internet.
"Internet service provider." As follows:
(1) A person engaged in the business of providing a
computer and communications facility through which a consumer
may obtain access to the Internet.
(2) The term does not include a common carrier if it
provides only telecommunications service.
"Live adult entertainment establishment." As follows:
(1) A nightclub, bar, restaurant or similar commercial
enterprise that:
(i) Provides for an audience of two or more
individuals with live nude entertainment or live nude
performances.
(ii) Authorizes on-premises consumption of alcoholic
beverages, regardless of whether the consumption of
alcoholic beverages is under a license or permit issued
under the act of April 12, 1951 (P.L.90, No.21), known as
the Liquor Code.
(2) The term does not include a theatre as defined under
section 2 of the act of June 5, 1937 (P.L.1656, No.344),
known as the Store and Theatre Tax Act.
"Minor." As defined in 18 Pa.C.S. § 5903(b).
"Nude." Either of the following:
(1) Entirely unclothed.
(2) Clothed in a manner that leaves uncovered or
visible, through less than fully opaque clothing, any portion
of the breasts below the top of the areola of the breasts, if
the person is female, or any portion of the genitals or
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buttocks.
"Obscene." As follows:
(1) As defined in 18 Pa.C.S. § 5903(b).
(2) The term includes a website that:
(i) is known to facilitate human trafficking and
prostitution; or
(ii) displays or depicts images that are harmful to
minors or that constitutes sadomasochistic abuse, sexual
excitement, sexual conduct or revenge pornography.
"Personal identification information." Information that
identifies a person, including an individual's photograph,
Social Security number, driver identification number, name,
email address, address or telephone number.
"Prostitution." As described in 18 Pa.C.S. § 5902 (relating
to prostitution and related offenses).
"Retailer." As follows:
(1) A person that regularly engages in the
manufacturing, sale, offer for sale, lease or distribution of
Internet-enabled devices or services in this Commonwealth
that make content accessible on the Internet.
(2) The term includes an Internet service provider or
supplier or manufacturer of Internet-enabled devices that:
(i) materially play a role in distributing content
on the Internet or that make content accessible on the
Internet; and
(ii) are subject to the jurisdiction of this
Commonwealth.
"Revenge pornography." The distribution of sexually explicit
images or video of individuals without their permission, which
is an offense under 18 Pa.C.S. § 3131 (relating to unlawful
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dissemination of intimate image).
"Sadomasochistic abuse." As defined in 18 Pa.C.S. § 5903(b).
"Sexual conduct." As defined in 18 Pa.C.S. § 5903(b).
"Sexual excitement." As defined in 18 Pa.C.S. § 5903(e)(4).
"Social media website." An Internet website or application
that enables users to communicate with each other by posting
information, comments, messages or images and that meets all of
the following requirements:
(1) Is open to the public.
(2) Has more than 75 million subscribers.
(3) From its inception, has not been specifically
affiliated with any one religion or political party.
(4) Provides a means for the website's users to report
obscene materials and has in place procedures for evaluating
those reports and removing obscene material.
§ 5503. Duties of retailers.
(a) Filter generally.--A retailer of an Internet-enabled
device shall ensure that the device is equipped with an active
and operating filter prior to sale that blocks by default
Internet websites that:
(1) Are known to facilitate human trafficking or
prostitution.
(2) Display child pornography, revenge pornography or
obscene material harmful to minors.
(b) Specific duties.--A retailer of an Internet-enabled
device:
(1) Shall make reasonable and ongoing efforts to ensure
that the filter functions properly.
(2) Shall establish a reporting mechanism, such as a
website or call center, to allow a consumer to report
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unblocked websites displaying content described in subsection
(a) or report blocked websites that are not displaying
content described in subsection (a).
(3) Shall report child pornography received through the
reporting mechanism under subsection (b) to the CyberTipline
operated by the National Center for Missing and Exploited
Children in accordance with 18 U.S.C. § 2258A (relating to
reporting requirements of providers).
(4) May not block access to websites that:
(i) are social media websites that provide a means
for the website's users to report obscene materials and
have in place procedures for evaluating those reports and
removing obscene material;
(ii) serve primarily as a search engine; or
(iii) display complete movies that meet the
qualifications for a "G," "PG," "PG-13" or "R" rating by
the Classification and Rating Administration, as those
qualifications existed on September 1, 2020.
(5) Except as provided in subsection (c), may not
provide to a consumer methods, source code or other operating
instructions for deactivating the filter of the device.
(c) Deactivation of filter.--A retailer of an Internet-
enabled device shall deactivate the filter of the device after a
consumer:
(1) Requests that the capability be disabled.
(2) Presents personal identification information to
verify that the consumer is 18 years of age or older.
(3) Acknowledges receiving a warning regarding the
potential danger of deactivating the filter.
(4) Pays a one-time $20 filter deactivation fee to the
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Department of Revenue in accordance with section 5504
(relating to filter deactivation fee).
§ 5504. Filter deactivation fee.
(a) Duties of Secretary of Revenue.--The Secretary of
Revenue shall prescribe the method of administration, payment,
collection and enforcement of the fee imposed under section
5503(c) (relating to duties of retailers), in conformity with
the provisions of the act of April 9, 1929 (P.L.343, No.176),
known as The Fiscal Code. The following apply:
(1) The Secretary of Revenue shall forward 80% of the
revenue received from the fee to the fund under 18 Pa.C.S. §
3033 (relating to Indecent Deceptive Trade Practices Fund).
(2) The Secretary of Revenue shall forward 20% of the
revenue received from the fee to the Department of Human
Services for use for victims of rape in accordance with
provisions of section 2333 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
(b) Purpose.--The fee imposed under section 5503(c) shall
not be content-based and shall be for the purpose of helping the
Commonwealth bear the costs of upholding community standards of
decency and combating sex-related offenses.
(c) Adjustment.--The Secretary of Revenue may annually
adjust the fee imposed under section 5503(c) to account for
inflation. The following apply:
(1) If the fee is adjusted to account for inflation, the
Secretary of Revenue shall:
(i) Transmit a notice of the fee adjustment to the
Legislative Reference Bureau for publication in the
Pennsylvania Bulletin.
(ii) Post a notice of the fee adjustment on the
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publicly accessible Internet website of the Department of
Revenue.
(2) The fee adjustment shall be effective 30 days after
the publication of the notice under paragraph (1)(i).
(d) Effect.--Nothing in this chapter shall be construed to
prevent a retailer from charging a reasonable fee, in addition
to the fee imposed under section 5503(c), to deactivate the
filter.
§ 5505. Warning regarding filter deactivation.
The Attorney General shall prepare and make available to
retailers a form that includes all content that must be in the
warning described in section 5503(c)(3) (relating to duties of
retailers).
§ 5506. Database or registry not required.
Nothing in this act shall be construed to require a retailer
of an Internet-enabled device to create a database or registry
that contains the names or personal identification information
of adult consumers who knowingly chose to deactivate the filter
of the device.
§ 5507. Confidentiality.
A retailer of an Internet-enabled device shall take due care
to protect the privacy rights of adult consumers under this
chapter and may not disclose the name or personal identification
information of an adult consumer who decided to deactivate the
filter of the device.
§ 5508. Remedies and affirmative defense.
(a) Remedy by consumer generally.--In accordance with
section 5503(b)(2) (relating to duties of retailers), if the
filter blocks a website that is not displaying content described
in section 5503(a) and the block is reported to a reporting
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mechanism, the website shall be unblocked within a reasonable
time, but in no event later than five business days after the
block is first reported. The following apply:
(1) A consumer may commence a civil action to unblock a
website that was wrongfully blocked by the filter.
(2) The prevailing party in the civil action may seek
attorney fees, costs and other forms of relief.
(b) Other remedies.--In accordance with section 5503(b)(2),
if a person who manufactures, sells, offers for sale, leases or
distributes a product that makes content accessible on the
Internet is unresponsive to report of a website displaying
content described in section 5503(a) that has breached the
filter, the Attorney General or a consumer may commence a civil
action. The following apply:
(1) The Attorney General or consumer may seek damages of
up to $500 for each website that was reported but not
subsequently blocked.
(2) The prevailing party in the civil action may seek
attorney fees, costs and other forms of relief.
(c) Unfair trade practices.--A retailer that fails to comply
with the duties under subsection (a) or (b) shall be deemed to
have engaged in unfair methods of competition and unfair or
deceptive acts or practices in violation of the act of December
17, 1968 (P.L.1224, No.387), known as the Unfair Trade Practices
and Consumer Protection Law, and is subject to the penalties
under that act.
(d) Affirmative defense.--It shall be an affirmative defense
in a civil action to a charge of violating this chapter that the
dissemination of the content described in section 5503(a) was
limited to institutions or organizations having scientific,
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educational or other similar jurisdictions for displaying the
material.
§ 5509. Unlawful practices and penalties.
(a) Offense.--A retailer is guilty of an offense if the
retailer knowingly:
(1) Sells an Internet-enabled device without an
activated filter that at least makes an attempt to block by
default websites that display content described in section
5503(a) (relating to duties of retailers).
(2) Violates section 5503(b)(5).
(3) Fails to comply with the requirements of section
5503(c) before deactivating the filter.
(4) Discloses to a third party the name or personal
identification information of an adult consumer who has
elected to deactivate a filter, without a court order
directing otherwise.
(b) Penalty.--A retailer that commits an offense under
subsection (a) shall be fined not more than $1,000 for a first
offense and not more than $2,500 for a second or subsequent
offense.
(c) Other penalties.--
(1) A retailer that commits an offense under subsection
(a) with two prior convictions under subsection (a) is guilty
of a misdemeanor of the first degree and is subject to the
penalties specified in 18 Pa.C.S. § 5903(h) (relating to
obscene and other sexual materials and performances).
(2) A retailer that commits an offense under subsection
(a) shall be deemed to have engaged in unfair methods of
competition and unfair or deceptive acts or practices in
violation of the act of December 17, 1968 (P.L.1224, No.387),
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known as the Unfair Trade Practices and Consumer Protection
Law, and is subject to the penalties under that act.
(d) Enforcement.--Only the Attorney General or an
appropriate district attorney may commence an action to enforce
this section.
§ 5510. Live adult entertainment establishment admission fee.
(a) Imposition and remittance of fee.--A $5 admission fee is
imposed for each entry by each customer admitted to a live adult
entertainment establishment. The live adult entertainment
establishment shall remit the admission fee to the Department of
Revenue.
(b) Duties of Secretary of Revenue.--The Secretary of
Revenue shall prescribe the method of administration, payment,
collection and enforcement of the fee imposed under subsection
(a), in conformity with the provisions of the act of April 9,
1929 (P.L.343, No.176), known as The Fiscal Code. The following
apply:
(1) The Secretary of Revenue shall forward 80% of the
revenue received from the fee to the fund under 18 Pa.C.S. §
3033 (relating to Indecent Deceptive Trade Practices Fund).
(2) The Secretary of Revenue shall forward 20% of the
revenue received from the fee to the Department of Human
Services for use for victims of rape in accordance with the
provisions of section 2333 of the act of April 9, 1929
(P.L.177, No.175), known as The Administrative Code of 1929.
(c) Purpose.--The fee imposed under subsection (a) shall not
be content-based and shall be for the purpose of offsetting
secondary harmful effects and helping the Commonwealth bear the
costs of upholding community standards of decency and combating
sex-related offenses.
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(d) Other taxes and fees.--The admission fee under
subsection (a) is in addition to any other taxes or fees imposed
on the live adult entertainment establishment.
(e) A live adult entertainment establishment shall record
daily, in a manner prescribed by the Secretary of Revenue, the
number of customers admitted to the live adult entertainment
establishment. The following apply:
(1) The live adult entertainment establishment shall
maintain the records for the period required by the Secretary
of Revenue and make the records available for inspection and
audit on request by the Secretary of Revenue.
(2) The live adult entertainment establishment shall
file any report with the Department of Revenue in the manner
and containing the information required by the Secretary of
Revenue.
(3) The records and reports under this subsection shall
not contain the names or personal identification information
of any of the customers.
(f) Discretion of establishment.--This section does not
require a live adult entertainment establishment to impose a tax
on a customer of the live adult entertainment establishment. The
live adult entertainment establishment may determine the manner
in which the live adult entertainment establishment derives the
money required to pay the tax imposed under this section.
§ 5511. Applicability.
This chapter does not apply to:
(1) An occasional sale of an Internet-enabled device by
a person that is not regularly engaged in the business of
selling Internet-enabled devices.
(2) Devices produced or sold before the effective date
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of this section.
(3) Independent third-party routers that are not
affiliated with an Internet service provider.
(4) A retailer that is not subject to the jurisdiction
of this Commonwealth.
Section 2. Title 18 is amended by adding a section to read:
§ 3033. Indecent Deceptive Trade Practices Fund.
(a) Establishment.--The Indecent Deceptive Trade Practices
Fund is established as a special nonlapsing fund in the State
Treasury.
(b) Purpose.--The fund shall enable the commission to
provide grants to:
(1) Carry out the purposes specified in section 3031
(relating to grants) .
(2) P romote the development throughout this Commonwealth
of locally based and supported nonprofit programs for the
survivors of human trafficking and sex-related offenses and
to better enable the quality of services provided.
(3) Empower government groups and nongovernment groups
working to uphold community standards of decency, protect
children and strengthen families.
(4) Develop, expand, prevent or offset the costs of sex-
related offenses, especially human trafficking or child
exploitation.
(5) A State agency, unit of local government,
nongovernment group or other person :
(i) For services to help women with substance abuse
disorders.
(ii) For counselors and victim advocates who are
trained to assist victims of domestic violence and sexual
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abuse.
(iii) For shelters for women, particularly those who
have been exposed to prostitution or sex trafficking.
(iv) For research-based organizations and
universities.
(v) For faith-based organizations assisting victims
of human trafficking or other sex offenses.
(vi) For child advocacy centers.
(vii) For organizations that provide legal advocacy
to abused, neglected or at-risk children.
(viii) For family therapists and counselors.
(ix) For scholarships for students who demonstrate
outstanding moral character, leadership or judgment.
(x) To prevent or improve services for victims of
sexual assault.
(xi) To support technology in rape crisis centers.
(xii) To conduct human trafficking enforcement
programs or uphold community standards of decency.
(xiii) For groups providing pro bono legal services
to victims of sex-related offenses.
(6) Meet the evolving needs of this Commonwealth
regarding the matters described in paragraphs (1), (2), (3),
(4) and (5).
(c) Sources of money.--Money available to the fund shall
include:
(1) Money generated through the fee under 12 Pa.C.S. §
5504(a)(1) (relating to filter deactivation fee).
(2) Money generated through the fee under 12 Pa.C.S. §
5510(b)(1) (relating to live adult entertainment
establishment admission fee).
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(3) Appropriations, executive authorizations and
transfers from the General Fund, special funds, Federal funds
and other sources of revenue, including gifts, donations and
bequests, made available to the fund.
(d) Administration.--
(1) The commission shall administer the fund, unless the
Attorney General has legitimate grounds to appoint a
different administrator.
(2) Money deposited into the fund may be used only by
the commission or the Attorney General's designee, if so
appointed, for grants for the purposes specified in
subsection (b), s ubject to the availability of money in the
fund.
(3) No administrative action shall prevent the deposit
of money into the fund in the fiscal year in which the money
is received.
(4) The fund may only be used for funding authorized
under this section.
(5) Money in the fund may not be transferred or diverted
to any other purpose by administrative action.
(6) Notwithstanding any other provision of law, any
balance in the fund remaining unspent at the end of a fiscal
year, including any interest accruing on investments and
deposits of the fund, shall be credited to the fund and shall
be carried forward into the subsequent fiscal year.
(7) All money deposited into the fund and the interest
the money accrues is appropriated to the commission on a
continuing basis for grants under this section.
(8) Administrative expenses regarding the operation of
the fund shall not exceed 10% of the money in the fund during
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a fiscal year.
(e) Reports.-- The commission or the Attorney General's
designee, if so appointed, shall annually evaluate activities
conducted under this section each year. The following apply:
(1) On or before February 15 of each year, the
commission or the Attorney General's designee, if so
appointed, shall submit an annual report containing the
evaluation.
(2) The report under this subsection shall be
transmitted to the Secretary of the Senate and the Chief
Clerk of the House of Representatives, who shall notify the
General Assembly that the report is available.
(3) The report under this subsection must include:
(i) T he amount of fees received under 12 Pa.C.S. §
5504(a)(1).
(ii) The amount of fees received under 12 Pa.C.S. §
5510(b)(1).
(iii) The manner in which the money in the fund was
distributed through grants.
(iv) The manner in which each grant recipient used
the grant money.
(v) The amount and nature of administrative expenses
regarding the fund.
(f) Rules.--The commission or the Attorney General's
designee, if so appointed, may by rule:
(1) Determine eligibility requirements for any grant
awarded under this section.
(2) Require a grant recipient to offer minimum services
for a period of time before receiving a grant and to continue
to offer minimum services during the grant period.
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(3) Require a grant recipient to submit financial and
programmatic reports.
(g) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Fund." The Indecent Deceptive Trade Practices Fund
established under this section.
"Nongovernment group." As follows:
(1) A nonprofit organization that is exempt from Federal
income taxation under section 501(c)(3) of the Internal
Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 1 et
seq.) and whose primary purpose is to end human trafficking
and sexual violence in this Commonwealth through the
development and support of programs or services for the
prevention of human trafficking and sexual violence, outreach
programs and technical assistance to youth and rape crisis
centers working to prevent human trafficking and sexual
violence.
(2) The term includes an individual and a group that is
providing a program or service to uphold community standards
of decency.
Section 3. This act shall take effect in 180 days.
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