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REFERENCE TITLE: electronic devices; filters; harmful material |
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State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session 2021
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HB 2864 |
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Introduced by Representative Udall
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AN ACT
amending title 44, Arizona Revised Statutes, by adding chapter 38; relating to minor children.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 44, Arizona Revised Statutes, is amended by adding chapter 38, to read:
CHAPTER 38
CAUSE OF ACTION TO PROTECT MINORS FROM UNFILTERED DEVICES
ARTICLE 1. GENERAL PROVISIONS
44-7921. Definitions
In this chapter, unless the context otherwise requires:
1. "Activate" means the process of powering on a device and associating it with a new user account.
2. "Device" means a tablet or a smart phone manufactured on or after January 1, 2022.
3. "Filter" means software installed on a device that is capable of preventing the device from accessing or displaying material that is harmful to minors through the internet or any applications owned and controlled by the manufacturer and installed on the device.
4. "Harmful to minors" has the same meaning prescribed in section 13-3501.
5. "Internet" has the same meaning prescribed in section 13-3506.01.
6. "Manufacturer" means a person that is engaged in the business of manufacturing a device.
7. "Minor" means a person who is under eighteen years of age and who is not emancipated, married or a member of the armed forces of the United States.
8. "Mobile carrier":
(a) Means a wireless service provider that supplies cellular connectivity services to smart phone and computer subscribers.
(b) Includes mobile virtual network operators.
9. "Mobile data" means wireless data and internet that a mobile carrier provides to a device.
10. "Smart phone" means an electronic device that combines a cell phone with a handheld computer, typically offering internet access, data storage and text and email capabilities.
11. "Tablet" means a mobile device that both:
(a) Is equipped with a mobile operating system, touchscreen display and rechargeable battery.
(b) Has the ability to support access to a cellular network.
44-7922. Filter required
Beginning January 1, 2022, a manufacturer shall manufacture a device that, when activated in this state, automatically enables a filter that:
1. When enabled, prevents the user from accessing or downloading material that is harmful to minors on:
(a) Mobile data networks.
(b) Applications owned and controlled by the manufacturer.
(c) Wired internet networks.
(d) Wireless internet networks.
2. Notifies the user of the device when the filter blocks the device from downloading an application or accessing a website.
3. Gives a user with a passcode the opportunity to unblock a filtered application or website.
4. Reasonably prevents a user other than a user with a passcode the opportunity to deactivate, modify or uninstall the filter.
44-7923. Liability
A. Beginning January 1, 2022, a manufacturer is liable to a minor in this state if all of the following apply:
1. The device is activated in this state.
2. On activation in this state, the device does not enable a filter that complies with the requirements described in section 44-7922.
3. The minor accesses material that is harmful to minors on the device.
B. This section does not affect any private right of action existing under other law, including contract.
C. This section does not apply to a manufacturer that makes a good faith effort to install and provide a device that, on activation of the device in this state, automatically enables a generally accepted and commercially reasonable method of filtration in accordance with section 44-7922 and industry standards.
44-7924. Damages; class action
A. If a court finds that a manufacturer is liable under section 44-7923, the court may award the plaintiff both:
1. Actual damages.
2. Punitive damages, if the plaintiff proves that the manufacturer targeted minors.
B. A class action may be brought under this section.
44-7925. Enforcement; civil penalties
A. A manufacturer that is found liable under section 44-7923 shall be both:
1. Liable for civil penalties not to exceed $2,500 per violation, plus filing fees and attorney fees, in addition to any other penalty established by law.
2. Enjoined from further violations.
B. The civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.
C. For the purposes of assessing a civil penalty under this section, a manufacturer is considered to have committed a separate violation for each device manufactured on or after January 1, 2022 and activated in this state on which both:
1. A filter is not automatically enabled.
2. A minor encounters material harmful to minors.
D. A plaintiff shall prove and a court shall find, by clear and convincing evidence, that a manufacturer manufactured a device on or after January 1, 2022 that was activated in this state in violation of section 44-7922. The plaintiff shall prove all other elements by a preponderance of the evidence.
E. The attorney general or a private individual may bring an action pursuant to this section. A private individual may bring an action in the public interest to establish liability under section 44-7923 after satisfying the requirements of subsections F, G and H of this section, if all of the following apply:
1. The individual has served on the alleged violator and the attorney general a notice of an alleged violation of section 44-7922.
2. The attorney general has not provided a letter to the noticing party within forty-five days after the day on which the attorney general receives the notice of an alleged violation indicating that either:
(a) An action is currently being pursued or will be pursued by the attorney general regarding the violation.
(b) The attorney general believes that there is no merit to the action.
3. The alleged violator has not responded to the notice of alleged violation or returned the proof of compliance form prescribed in Subsection J of this section.
F. The attorney for the noticing party or the noticing party if the noticing party is not represented by an attorney shall execute the notice of an alleged violation. The notice shall both:
1. State that the individual executing the notice believes that there is a violation.
2. Provide factual information sufficient to establish the basis for the alleged violation.
G. The attorney general shall review the notice of an alleged violation and may confer with the noticing party. Within forty-five days after the date on which the attorney general receives the notice of an alleged violation, the attorney general shall provide a letter to the noticing party and the alleged violator that states whether or not the attorney general finds merit in the action.
H. An individual who serves a notice of an alleged violation described in subsection F of this section shall complete and provide to the alleged violator, at the time the notice of an alleged violation is served, a notice of special compliance procedure and proof of compliance form pursuant to Subsection J of this section. The individual may file an action against the alleged violator, or recover from the alleged violator, if:
1. The notice of an alleged violation alleges that the alleged violator failed to manufacture a device that, when activated in this state, automatically enabled a filter as required under section 44-7922.
2. A minor encountered material harmful to minors on the device without the option to enable a filter.
3. Within sixty days after the date on which the alleged violator receives the notice of an alleged violation, the alleged violator has not:
(a) Corrected the alleged violation and all similar violations known to the alleged violator.
(b) Agreed to pay a penalty for the alleged violation in the amount of $500 per violation.
(c) Notified, in writing, the noticing party and the attorney general that the violation has been corrected.
I. The alleged violator shall pay the civil penalty to the noticing party within sixty days after the date on which the alleged violator received the notice of an alleged violation.
J. The notice of an alleged violation shall be in the following form:
Date:
Name of Noticing Party or Attorney for Noticing Party:
Address:
Phone Number:
SPECIAL COMPLIANCE PROCEDURE
PROOF OF COMPLIANCE
You are receiving this form because the Noticing Party listed above has alleged that you are in violation of section 44-7922, Arizona Revised Statutes.
The noticing party may bring legal proceedings against you for the alleged violation checked below if:
____You have not actually taken the corrective steps that you have certified in this form.
____The noticing party has not received this form at the address shown above, accurately completed by you and postmarked within fifty days after you receive this notice.
____The noticing party does not receive from you the required $500 penalty payment for each violation alleged at the address shown above and postmarked within sixty days after you receive this notice.
PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR THE NOTICING PARTY
This notice of an alleged violation is for failure to provide an activated filter to protect minors against exposure to materials considered harmful to minors. (provide complete description of violation, including when and where observed and the serial number of the device involved)
Date:
Name of Noticing Party or Attorney for Noticing Party:
Address:
Phone Number:
PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED REPRESENTATIVE
Certification of Compliance
Accurate completion of this form will demonstrate you are now in compliance with section 44-7922, Arizona Revised Statutes, for the alleged violation listed above. You must complete and submit the form below to the noticing party at the address shown above, with a copy to the attorney general, postmarked within fifty days after you receive this notice.
I hereby agree to pay, within sixty days after receipt of this notice, a penalty of $500 for each violation alleged to the noticing party only and certify that I have complied by (check only one of the following):
____Providing the party at the address shown above with information about how to enable a filter.
____Providing the party at the address shown above with information about how to exchange a device that did not have a filter automatically enable on activation for a replacement device of the same model that will automatically enable the filter on activation in this state.
CERTIFICATION
My statements on this form and on any attachments to it are true, complete and correct to the best of my knowledge and belief and are made in good faith. I have carefully read the instructions to complete this form.
Signature of alleged violator or authorized representative:
Date:
Name and title of signatory:
K. If a lawsuit is commenced, the plaintiff may include additional violations in the claim that are discovered through the discovery process.
L. An alleged violator shall satisfy the conditions set forth in subsection J of this section only one time per device.
M. Notwithstanding an alleged violator's compliance with subsection I of this section, the attorney general may file an action against the alleged violator.
N. In any action, a court shall reduce the amount of any civil penalty for a violation to reflect any payment made by the alleged violator to a private individual for the same alleged violation.