AB 3080: The Parent’s Accountability and Child Protection Act.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-08-05
Current Status:
Failed
(2024-08-15: In committee: Held under submission.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law, the Parents Accountability and Child Protection Act, requires a person or business that conducts business in California and that seeks to sell specified products or services to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including verifying the age of the purchaser. The act provides that reasonable steps include, but are not limited to, any of specified options, including requiring the user to input, scan, provide, or display a government-issued identification, as specified. The act prohibits any person or business required to comply with the provisions of the act from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age under the provisions of the act. In an action brought by a public prosecutor, existing law subjects a business or person that violates these provisions to a civil penalty not to exceed $7,500 for each violation.
This bill would expand the above-described provisions to require a person or business that conducts business in California and seeks to sell or make available products or services that are illegal to make available to minors, as specified, to take reasonable steps to ensure that the purchaser or user, as defined, is of legal age at the time of access, purchase, or delivery, as applicable. The bill would provide that reasonable steps include, but are not limited to, any of specified options, including requiring the user or purchaser to input, scan, provide, or display a government-issued identification, as specified. specified, and would also require the Attorney General to issue regulations further defining reasonable steps pursuant to these provisions, as provided. The bill would expand the above-described prohibition against retention, use, or disclosure to apply to a person or business that conducts business in California and that seeks to make available products that are illegal to make available to minors and would require the business or person to ensure that the reasonable step is designed to anonymize a users identity and is incapable of being used to create a record of the users online activity.
This bill would also provide that the penalty described above for a violation of the bills provisions with regard to certain products or services that are illegal to make available to minors may be assessed and recovered only in a civil action brought by the Attorney General. The bill would also delete an obsolete provision.
The bill would make the bills provisions operative on January 1, 2027.
Existing law, the Parents Accountability and Child Protection Act, requires a person or business that conducts business in California and that seeks to sell specified products or services to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including verifying the age of the purchaser. The act provides that reasonable steps include, but are not limited to, any of specified options, including requiring the user to input, scan, provide, or display a government-issued identification, as specified. The act prohibits any person or business required to comply with the provisions of the act from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age under the provisions of the act.
This bill would expand the above-described provisions to require a person or business that conducts business in California and seeks to sell or make available products or services that are illegal to make available to minors, as specified, to take reasonable steps to ensure that the purchaser or user, as defined, is of legal age at the time of purchase or delivery. access, purchase, or delivery, as applicable. The bill would provide that reasonable steps include, but are not limited to, any of the following: (1) of specified options, including requiring the user or purchaser to input, scan, provide, or display a government-issued identification, as specified, (2) requiring the user to use a nonprepaid credit card or debit card for online access, or (3) implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website. specified. The bill would expand the above-described prohibition against retention, use, or disclosure to apply to a person or business that conducts business in California and that seeks to make available products that are illegal to make available to minors and would require the business or person to ensure that the reasonable step is designed to anonymize a users identity and is incapable of being used to create a record of the users online activity.
This bill would also delete an obsolete provision.
Existing law, the Parents Accountability and Child Protection Act, requires a person or business that conducts business in California and that seeks to sell specified products or services to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including verifying the age of the purchaser. The act provides that reasonable steps include, but are not limited to, any of specified options, including requiring the user to input, scan, provide, or display a government-issued identification, as specified.
This bill would expand the above-described provisions to require a person or business that conducts business in California and seeks to make available products that are illegal to make available to minors, as specified, to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery. The bill would provide that reasonable steps include, but are not limited to, any of the following: (1) requiring the user to input, scan, provide, or display a government-issued identification, as specified, (2) requiring the user to use a nonprepaid credit card or debit card for online access, or (3) implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
This bill would also delete an obsolete provision.
Existing law, beginning January 1, 2025, prohibits a social media platform, as defined, from knowingly facilitating, aiding, or abetting commercial sexual exploitation, as defined. Existing law prohibits a social media platform from being deemed to be in violation of this provision if it demonstrates certain mitigating facts, including that the social media platform instituted and maintained a program of at least biannual audits of its designs, algorithms, practices, affordances, and features to detect designs, algorithms, practices, affordances, or features that have the potential to cause or contribute to violations of that provision, as prescribed. Existing law, the California Consumer Privacy Act of 2018, grants to a consumer various rights with respect to personal information, as defined, that is collected by a business, as defined, including the right to request that a business delete personal information about the consumer that the business has collected from the consumer.This bill would require a covered platform, as defined, that publishes or distributes material harmful to minors, as defined, to perform reasonable age verification methods, as defined, to verify the age of each individual attempting to access the material and to prevent access by minors to the material. The bill would prohibit a covered platform, or any third party, that performs age verification pursuant to these provisions from retaining any identifying information of the individual after access has been granted to the material, general purpose unless otherwise required by law. The bill would state that its provisions do not apply to, among other things, an internet service provider, a general purpose search engine, or a cloud service provider. This bill would state that, except as provided, any attempted waiver or estoppel of a persons right to bring a civil action under these provisions is void as unlawful and against public policy, as specified, and would provide that any contract, agreement, or other arrangement made or entered in violation of these provisions is contrary to law and public policy, void, and unenforceable. The bill would authorize a parent or legal guardian of a minor to bring a civil action, as specified, against any covered platform for violating these provisions with respect to the minor. The bill would also authorize any individual, after access to the material harmful to minors has been granted to the individual, to bring a civil action, as specified, against a covered platform for a violation of the prohibition against retaining any identifying information of the individual.This bill would state that its provisions are severable.Existing law, beginning January 1, 2025, prohibits a social media platform, as defined, from knowingly facilitating, aiding, or abetting commercial sexual exploitation, as defined. Existing law prohibits a social media platform from being deemed to be in violation of this provision if it demonstrates certain mitigating facts, including that the social media platform instituted and maintained a program of at least biannual audits of its designs, algorithms, practices, affordances, and features to detect designs, algorithms, practices, affordances, or features that have the potential to cause or contribute to violations of that provision, as prescribed. Existing law, the California Consumer Privacy Act of 2018, grants to a consumer various rights with respect to personal information, as defined, that is collected by a business, as defined, including the right to request that a business delete personal information about the consumer that the business has collected from the consumer.
This bill would require a covered platform, as defined, that publishes or distributes material harmful to minors, as defined, to perform reasonable age verification methods, as defined, to verify the age of each individual attempting to access the material and to prevent access by minors to the material. The bill would prohibit a covered platform, or any third party, that performs age verification pursuant to these provisions from retaining any identifying information of the individual after access has been granted to the material, general purpose unless otherwise required by law. The bill would state that its provisions do not apply to, among other things, an internet service provider, a general purpose search engine, or a cloud service provider.
This bill would state that, except as provided, any attempted waiver or estoppel of a persons right to bring a civil action under these provisions is void as unlawful and against public policy, as specified, and would provide that any contract, agreement, or other arrangement made or entered in violation of these provisions is contrary to law and public policy, void, and unenforceable. The bill would authorize a parent or legal guardian of a minor to bring a civil action, as specified, against any covered platform for violating these provisions with respect to the minor. The bill would also authorize any individual, after access to the material harmful to minors has been granted to the individual, to bring a civil action, as specified, against a covered platform for a violation of the prohibition against retaining any identifying information of the individual.
This bill would state that its provisions are severable.
Existing law, the California Consumer Privacy Act of 2018 (CCPA), grants a consumer various rights with respect to personal information, as defined, that is collected or sold by a business, as defined, including requiring a business that collects a consumers personal information to disclose to that consumer the categories and specific pieces of personal information the business has collected. The California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, amended, added to, and reenacted the CCPA.This bill would make nonsubstantive changes to those provisions.Existing law, the California Consumer Privacy Act of 2018 (CCPA), grants a consumer various rights with respect to personal information, as defined, that is collected or sold by a business, as defined, including requiring a business that collects a consumers personal information to disclose to that consumer the categories and specific pieces of personal information the business has collected. The California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, amended, added to, and reenacted the CCPA.
This bill would make nonsubstantive changes to those provisions.
(a)(1)A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, of Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, and Sections 1798.29, 1798.81.5, and 1798.82, 1798.82 of this code, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Requiring the purchaser to use a nonprepaid credit card for an online purchase.
(C)Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).
(D)Shipping the product or service to an individual who is of legal age.
(3)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, of Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, and Sections 1798.29, 1798.81.5, and 1798.82, 1798.82 of this code, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Shipping the product or service to an individual who is of legal age.
(4)Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.
(5)A sellers reasonable and good faith reliance on bona fide evidence of the purchaser or recipients age shall constitute an affirmative defense to any action under this subdivision.
(6)A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order.
(b)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(2)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(3)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.
(4)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.
(5)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.
(6)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.
(c)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.
(2)A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.
(4)Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(5)Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.
(6)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
(d)In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.
(e)The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.
(f)For purposes of this section, a government-issued identification means any of the following:
(1)A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operators license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.
(2)A valid passport issued by the United States or by a foreign government.
(3)A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.
(4)A valid consular identification document.
(5)An identification card issued by a federally recognized tribal government.
(g)This section shall become operative on January 1, 2020.(g)This section shall remain in effect only until January 1, 2027, and as of that date is repealed.
SEC. 2.Section 1798.99.1 is added to the Civil Code, to read:1798.99.1.(a)(1)A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2)A person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
(3)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, and Sections 1798.29, 1798.81.5, and 1798.82 of this code, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Requiring the purchaser to use a nonprepaid credit card for an online purchase.
(C)Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).
(D)Shipping the product or service to an individual who is of legal age.
(4)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, and Sections 1798.29, 1798.81.5, and 1798.82 of this code, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Shipping the product or service to an individual who is of legal age.
(5)(A)Reasonable steps as used in paragraph (2) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
(i)Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, and Sections 1798.29, 1798.81.5, and 1798.82 of this code, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(ii)Requiring the user to use a nonprepaid credit card or debit card for online access.
(iii)Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
(iv)Implementation of a system that does either of the following:
(I)Includes metadata or response headers identifying the product as sexually explicit to parental control software, embedded hardware applications, and other similar services designed to block, filter, monitor, or otherwise prevent a minors access to inappropriate online content.
(II)Blocks any user designed as a minor by the operating system of the device used to access the internet website.
(B)A person or business required to comply with paragraph (2) shall ensure that the reasonable step is designed to anonymize a users identity and is incapable of being used to create a record of the users online activity.
(C)The Attorney General shall issue regulations further defining what constitutes reasonable steps for the provision of a product described in subdivision (d).
(6)Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.
(7)A sellers reasonable and good faith reliance on bona fide evidence of the purchaser or recipients age shall constitute an affirmative defense to any action under this subdivision.
(8)A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order.
(9)For purposes of this subdivision, user means a person who intends to access a product in California that is illegal under state law to make available to a minor, as described in subdivision (d).
(b)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(2)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(3)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.
(4)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.
(5)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.
(6)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.
(c)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.
(2)A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.
(4)Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(5)Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.
(6)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
(d)(1)Products that are illegal to make available to minors include pornographic internet websites.
(2)(A)Pornographic internet website means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website.
(B)Sexually explicit content means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(e)(1)In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.
(2)Notwithstanding paragraph (1), an action to assess and recover the civil penalty described in paragraph (1) for a violation of paragraph (2) of subdivision (a), shall only be brought by the Attorney General in the name of the people of the State of California.
(f)The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.
(g)For purposes of this section, a government-issued identification means any of the following:
(1)A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operators license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.
(2)A valid passport issued by the United States or by a foreign government.
(3)A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.
(4)A valid consular identification document.
(5)An identification card issued by a federally recognized tribal government.
(h)This section shall become operative on January 1, 2027.
SECTION 1.Section 1798.99.1 of the Civil Code is amended to read:1798.99.1.(a)(1)A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.(2)A person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.(3)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.(B)Requiring the purchaser to use a nonprepaid credit card for an online purchase.(C)Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).(D)Shipping the product or service to an individual who is of legal age.(4)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.(B)Shipping the product or service to an individual who is of legal age.(5)(A)Reasonable steps as used in paragraph (2) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:(i)Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.(ii)Requiring the user to use a nonprepaid credit card or debit card for online access.(iii)Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.(B)A person or business required to comply with paragraph (2) shall ensure that the reasonable step is designed to anonymize a users identity and is incapable of being used to create a record of the users online activity.(6)Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.(7)A sellers reasonable and good faith reliance on bona fide evidence of the purchaser or recipients age shall constitute an affirmative defense to any action under this subdivision.(8)A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order. (9)For purposes of this subdivision, user means a person who intends to access a product in California that is illegal under state law to make available to a minor, as described in subdivision (d).(b)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:(1)An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.(2)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.(3)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.(4)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.(5)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.(6)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.(c)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:(1)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.(2)A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.(4)Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.(5)Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.(6)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.(d)(1)Products that are illegal to make available to minors include pornographic internet websites.(2)(A)Pornographic internet website means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website.(B)Sexually explicit content means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(e)In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.(f)The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.(g)For purposes of this section, a government-issued identification means any of the following:(1)A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operators license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.(2)A valid passport issued by the United States or by a foreign government.(3)A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.(4)A valid consular identification document.(5)An identification card issued by a federally recognized tribal government.(a)(1)A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), or to make available a product as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2)A person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
(2)(3)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Requiring the purchaser to use a nonprepaid credit card for an online purchase.
(C)Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).
(D)Shipping the product or service to an individual who is of legal age.
(3)(4)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.(B)Shipping the product or service to an individual who is of legal age.(4)(5)(A)Reasonable steps as used in paragraph (1) (2) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
(A)(i)Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)(ii)Requiring the user to use a nonprepaid credit card or debit card for online access.
(C)(iii)Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
(B)A person or business required to comply with paragraph (2) shall ensure that the reasonable step is designed to anonymize a users identity and is incapable of being used to create a record of the users online activity.
(5)(6)Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.
(6)(7)A sellers reasonable and good faith reliance on bona fide evidence of the purchaser or recipients age shall constitute an affirmative defense to any action under this subdivision.
(7)(8)A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order.
(9)For purposes of this subdivision, user means a person who intends to access a product in California that is illegal under state law to make available to a minor, as described in subdivision (d).
(b)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(2)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(3)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.
(4)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.
(5)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.
(6)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.
(c)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.
(2)A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.
(4)Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(5)Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.
(6)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
(d)(1)Products that are illegal to make available to minors include pornographic internet websites.
(2)(A)Pornographic internet website means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website.(B)Sexually explicit content means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.(e)In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.
(f)The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.
(g)For purposes of this section, a government-issued identification means any of the following:
(1)A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operators license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.(2)A valid passport issued by the United States or by a foreign government.(3)A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.(4)A valid consular identification document.(5)An identification card issued by a federally recognized tribal government.(a)(1)A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), or to make available a product as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Requiring the purchaser to use a nonprepaid credit card for an online purchase.
(C)Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).
(D)Shipping the product or service to an individual who is of legal age.
(3)Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:
(A)Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Shipping the product or service to an individual who is of legal age.
(4)Reasonable steps as used in paragraph (1) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
(A)Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B)Requiring the user to use a nonprepaid credit card or debit card for online access.
(C)Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
(4)(5)Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.
(5)(6)A sellers reasonable and good faith reliance on bona fide evidence of the purchaser or recipients age shall constitute an affirmative defense to any action under this subdivision.
(6)(7)A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order.
(b)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(2)Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(3)Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.
(4)Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.
(5)Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.
(6)Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.
(c)Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1)Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.
(2)A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
(3)Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.
(4)Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(5)Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.
(6)A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
(d)(1)Products that are illegal to make available to minors include pornographic internet websites.
(2)(A)Pornographic internet website means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website.
(B)Sexually explicit content means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(d)(e)In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.
(e)(f)The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.
(f)(g)For purposes of this section, a government-issued identification means any of the following:
(1)A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operators license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.
(2)A valid passport issued by the United States or by a foreign government.
(3)A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.
(4)A valid consular identification document.
(5)An identification card issued by a federally recognized tribal government.
(g)This section shall become operative on January 1, 2020.SECTION 1.Title 22.1 (commencing with Section 3273.70) is added to Part 4 of Division 3 of the Civil Code, to read:22.1.Age Verification for Internet Websites Containing Obscene and Indecent Material3273.70.For purposes of this title, the following definitions apply:(a)Child pornography has the same meaning as defined in Section 2256 of Title 18 of the United States Code.(b)Covered platform means an entity for which all of the following are true:(1)The entity makes available an internet website.(2)It is in the regular course of the trade or business of the entity to create, host, or make available material harmful to minors under subdivision (f).(3)The material harmful to minors is provided by the entity, user, or other information content provider with the objective of earning a profit.(c)Indecent means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with regulations set forth by the Federal Communications Commission in Section 73.3999 of Title 47 of the Code of Federal Regulations, as it read on the date enacting this section, meets any of the following conditions:(1)Would be found by the average person, applying contemporary statewide standards, to be generally harmful to minors.(2)Depicts, describes, exposes, or presents sexual conduct in a patently offensive way.(3)Taken as a whole, lacks serious literary, artistic, or scientific value for the purpose of educating minors.(d)Interactive computer service has the same meaning as defined in Section 230(f)(2) of Title 47 of the United States Code.(e)Information content provider has the same meaning as defined in Section 230(f)(3) of Title 47 of the United States Code.(f)Material harmful to minors means any picture, image, graphic image file, film, videotape, or other visual depiction that is any of the following:(1)Obscene.(2)Indecent.(3)Child pornography.(g)Minor means a person under the age of 18 years of age who meets at least one of the following conditions:(1)Is a permanent resident of this state.(2)Has resided in this state for more than one year.(3)Has been temporarily staying in this state for at least 31 consecutive days.(h)Obscene means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with Miller v. California (1973) 413 U.S. 15, meets any of the following conditions:(1)Would be found by the average person, applying contemporary statewide standards, to appeal to the prurient interest.(2)Depicts, describes, exposes, or presents sexual conduct in a patently offensive way.(3)Taken as a whole, lacks serious literary, artistic, or scientific value.(i)Reasonable age verification measures include all of the following:(1)A state-issued drivers license.(2)A state-issued identification card.(3)A government-issued identification card.(4)A military identification card.(5)A credit card, except a credit card that does not require the individual in ownership of the account to be at least 18 years of age.(6)A debit card, except a debit card that does not require the individual in ownership of the account to be at least 18 years of age.(7)Bank account information.(8)Any other means or method that reliably and accurately can determine whether a user of a covered platform is a minor and prevent access by a minor to the content on a covered platform.3273.71.A covered platform that publishes or distributes material harmful to minors shall do the following:(a)Perform reasonable age verification methods to verify the age of each individual attempting to access the material. (b)Prevent access by minors to the material.3273.72.Unless otherwise required by law, a covered platform, or any third party, that performs age verification pursuant to this title shall not retain any identifying information of the individual after access has been granted to the material.3273.73.(a)This title shall not apply to an internet service provider, or its affiliate or subsidiary that is not a covered platform, a general purpose search engine, or a cloud service provider.(b)This title does not subject a covered platform to any cause of action or liability to the extent that the covered platform is protected from causes of action or liability by federal law.(c)Compliance with this chapter shall not excuse any person from any other legal duties or relieve a person from any other legal remedies.(d)Notwithstanding any other law, the requirements of this title shall be enforced exclusively through the private civil actions described herein.(e)The prohibitions in this title shall not apply in a case to the extent that they would violate the doctrine of the dormant Commerce Clause of the United States Constitution as enunciated by the Supreme Court of the United States.3273.74.(a)Except as provided in subdivision (b), any attempted waiver or estoppel of a persons right to bring a civil action under this title, or of any remedy or any other protection provided by this title, is void as unlawful and against public policy. Notwithstanding any choice-of-law rules that would apply the laws of another jurisdiction, a court or arbitrator shall neither enforce nor give effect to such a waiver or estoppel.(b)The waiver and estoppel prohibitions described in subdivision (a) shall not apply to contractual waivers to the extent that any application of the prohibition would impair the obligation of contracts in violation of the state and federal constitutions.(c)The prohibitions on estoppel and contractual or other waivers described in subdivision (a) is a public policy limitation of the highest importance and interest to California, and the State of California is exercising and enforcing this prohibition to the full extent permitted by the state and federal constitutions.(d)Any contract, agreement, or other arrangement made or entered in violation of this title is contrary to law and public policy, void, and unenforceable.3273.75.(a)(1)A parent or legal guardian of a minor may bring a civil action against any covered platform for violating this title with respect to the minor.(2)Any individual may bring a civil action against a covered platform for a violation of Section 3273.72 after access to the material harmful to minors has been granted to the individual.(b)(1)A violation of subdivision (a) of Section 3273.71 is subject to civil damages in the amount of five thousand dollars ($5,000) per violation.(2)A violation of subdivision (b) of Section 3273.71 is subject to civil damages in the amount of ten thousand dollars ($10,000) per image sent to a minor.(c)A prevailing plaintiff under this title shall recover court costs and reasonable attorneys fees.(d)An individual may bring an action under this title regardless of whether another court has declared any provision of this title unconstitutional unless that court decision is binding on the court in which the action is brought.(e)Nonmutual issue preclusion or nonmutual claim preclusion shall not be a defense to an action brought under this title.(f)In any jury trial brought under this title, the jury shall decide both guilt and any damages.3273.76.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.For purposes of this title, the following definitions apply:
(a)Child pornography has the same meaning as defined in Section 2256 of Title 18 of the United States Code.
(b)Covered platform means an entity for which all of the following are true:
(1)The entity makes available an internet website.
(2)It is in the regular course of the trade or business of the entity to create, host, or make available material harmful to minors under subdivision (f).
(3)The material harmful to minors is provided by the entity, user, or other information content provider with the objective of earning a profit.
(c)Indecent means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with regulations set forth by the Federal Communications Commission in Section 73.3999 of Title 47 of the Code of Federal Regulations, as it read on the date enacting this section, meets any of the following conditions:
(1)Would be found by the average person, applying contemporary statewide standards, to be generally harmful to minors.
(2)Depicts, describes, exposes, or presents sexual conduct in a patently offensive way.
(3)Taken as a whole, lacks serious literary, artistic, or scientific value for the purpose of educating minors.
(d)Interactive computer service has the same meaning as defined in Section 230(f)(2) of Title 47 of the United States Code.
(e)Information content provider has the same meaning as defined in Section 230(f)(3) of Title 47 of the United States Code.
(f)Material harmful to minors means any picture, image, graphic image file, film, videotape, or other visual depiction that is any of the following:
(1)Obscene.
(2)Indecent.
(3)Child pornography.
(g)Minor means a person under the age of 18 years of age who meets at least one of the following conditions:
(1)Is a permanent resident of this state.
(2)Has resided in this state for more than one year.
(3)Has been temporarily staying in this state for at least 31 consecutive days.
(h)Obscene means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with Miller v. California (1973) 413 U.S. 15, meets any of the following conditions:
(1)Would be found by the average person, applying contemporary statewide standards, to appeal to the prurient interest.
(2)Depicts, describes, exposes, or presents sexual conduct in a patently offensive way.
(3)Taken as a whole, lacks serious literary, artistic, or scientific value.
(i)Reasonable age verification measures include all of the following:
(1)A state-issued drivers license.
(2)A state-issued identification card.
(3)A government-issued identification card.
(4)A military identification card.
(5)A credit card, except a credit card that does not require the individual in ownership of the account to be at least 18 years of age.
(6)A debit card, except a debit card that does not require the individual in ownership of the account to be at least 18 years of age.
(7)Bank account information.
(8)Any other means or method that reliably and accurately can determine whether a user of a covered platform is a minor and prevent access by a minor to the content on a covered platform.
3273.71.A covered platform that publishes or distributes material harmful to minors shall do the following:
(a)Perform reasonable age verification methods to verify the age of each individual attempting to access the material.
(b)Prevent access by minors to the material.
3273.72.Unless otherwise required by law, a covered platform, or any third party, that performs age verification pursuant to this title shall not retain any identifying information of the individual after access has been granted to the material.
3273.73.(a)This title shall not apply to an internet service provider, or its affiliate or subsidiary that is not a covered platform, a general purpose search engine, or a cloud service provider.
(b)This title does not subject a covered platform to any cause of action or liability to the extent that the covered platform is protected from causes of action or liability by federal law.
(c)Compliance with this chapter shall not excuse any person from any other legal duties or relieve a person from any other legal remedies.
(d)Notwithstanding any other law, the requirements of this title shall be enforced exclusively through the private civil actions described herein.
(e)The prohibitions in this title shall not apply in a case to the extent that they would violate the doctrine of the dormant Commerce Clause of the United States Constitution as enunciated by the Supreme Court of the United States.
3273.74.(a)Except as provided in subdivision (b), any attempted waiver or estoppel of a persons right to bring a civil action under this title, or of any remedy or any other protection provided by this title, is void as unlawful and against public policy. Notwithstanding any choice-of-law rules that would apply the laws of another jurisdiction, a court or arbitrator shall neither enforce nor give effect to such a waiver or estoppel.
(b)The waiver and estoppel prohibitions described in subdivision (a) shall not apply to contractual waivers to the extent that any application of the prohibition would impair the obligation of contracts in violation of the state and federal constitutions.
(c)The prohibitions on estoppel and contractual or other waivers described in subdivision (a) is a public policy limitation of the highest importance and interest to California, and the State of California is exercising and enforcing this prohibition to the full extent permitted by the state and federal constitutions.
(d)Any contract, agreement, or other arrangement made or entered in violation of this title is contrary to law and public policy, void, and unenforceable.
3273.75.(a)(1)A parent or legal guardian of a minor may bring a civil action against any covered platform for violating this title with respect to the minor.
(2)Any individual may bring a civil action against a covered platform for a violation of Section 3273.72 after access to the material harmful to minors has been granted to the individual.
(b)(1)A violation of subdivision (a) of Section 3273.71 is subject to civil damages in the amount of five thousand dollars ($5,000) per violation.
(2)A violation of subdivision (b) of Section 3273.71 is subject to civil damages in the amount of ten thousand dollars ($10,000) per image sent to a minor.
(c)A prevailing plaintiff under this title shall recover court costs and reasonable attorneys fees.
(d)An individual may bring an action under this title regardless of whether another court has declared any provision of this title unconstitutional unless that court decision is binding on the court in which the action is brought.
(e)Nonmutual issue preclusion or nonmutual claim preclusion shall not be a defense to an action brought under this title.
(f)In any jury trial brought under this title, the jury shall decide both guilt and any damages.
3273.76.The provisions of this title are severable. If any provision of this title or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SECTION 1.Section 1798.100 of the Civil Code is amended to read:1798.100.General Duties of Businesses that Collect Personal Information(a)A business that controls the collection of a consumers personal information shall, at or before the point of collection, inform consumers of all of the following:(1)The categories of personal information to be collected and the purposes for which the categories of personal information are collected or used and whether that information is sold or shared. A business shall not collect additional categories of personal information or use personal information collected for additional purposes that are incompatible with the disclosed purpose for which the personal information was collected without providing the consumer with notice consistent with this section.(2)If the business collects sensitive personal information, the categories of sensitive personal information to be collected and the purposes for which the categories of sensitive personal information are collected or used, and whether that information is sold or shared. A business shall not collect additional categories of sensitive personal information or use sensitive personal information collected for additional purposes that are incompatible with the disclosed purpose for which the sensitive personal information was collected without providing the consumer with notice consistent with this section.(3)The length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine that period provided that a business shall not retain a consumers personal information or sensitive personal information for each disclosed purpose for which the personal information was collected for longer than is reasonably necessary for that disclosed purpose.(b)A business that, acting as a third party, controls the collection of personal information about a consumer may satisfy its obligation under subdivision (a) by providing the required information prominently and conspicuously on the homepage of its internet website. In addition, if a business acting as a third party controls the collection of personal information about a consumer on its premises, including in a vehicle, then the business shall, at or before the point of collection, inform consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information are used, and whether that personal information is sold, in a clear and conspicuous manner at the location.(c)A business collection, use, retention, and sharing of a consumers personal information shall be reasonably necessary and proportionate to achieve the purposes for which the personal information was collected or processed, or for another disclosed purpose that is compatible with the context in which the personal information was collected, and not further processed in a manner that is incompatible with those purposes.(d)A business that collects a consumers personal information and that sells that personal information to, or shares it with, a third party or that discloses it to a service provider or contractor for a business purpose shall enter into an agreement with the third party, service provider, or contractor, that does all of the following:(1)Specifies that the personal information is sold or disclosed by the business only for limited and specified purposes.(2)Obligates the third party, service provider, or contractor to comply with applicable obligations under this title and obligate those persons to provide the same level of privacy protection as is required by this title.(3)Grants the business rights to take reasonable and appropriate steps to help ensure that the third party, service provider, or contractor uses the personal information transferred in a manner consistent with the business obligations under this title.(4)Requires the third party, service provider, or contractor to notify the business if it makes a determination that it can no longer meet its obligations under this title.(5)Grants the business the right, upon notice, including under paragraph (4), to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.(e)A business that collects a consumers personal information shall implement reasonable security procedures and practices appropriate to the nature of the personal information to protect the personal information from unauthorized or illegal access, destruction, use, modification, or disclosure in accordance with Section 1798.81.5.(f)Nothing in this section shall require a business to disclose trade secrets, as specified in regulations adopted pursuant to paragraph (3) of subdivision (a) of Section 1798.185.General Duties of Businesses that Collect Personal Information
(a)A business that controls the collection of a consumers personal information shall, at or before the point of collection, inform consumers of all of the following:
(1)The categories of personal information to be collected and the purposes for which the categories of personal information are collected or used and whether that information is sold or shared. A business shall not collect additional categories of personal information or use personal information collected for additional purposes that are incompatible with the disclosed purpose for which the personal information was collected without providing the consumer with notice consistent with this section.
(2)If the business collects sensitive personal information, the categories of sensitive personal information to be collected and the purposes for which the categories of sensitive personal information are collected or used, and whether that information is sold or shared. A business shall not collect additional categories of sensitive personal information or use sensitive personal information collected for additional purposes that are incompatible with the disclosed purpose for which the sensitive personal information was collected without providing the consumer with notice consistent with this section.
(3)The length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine that period provided that a business shall not retain a consumers personal information or sensitive personal information for each disclosed purpose for which the personal information was collected for longer than is reasonably necessary for that disclosed purpose.
(b)A business that, acting as a third party, controls the collection of personal information about a consumer may satisfy its obligation under subdivision (a) by providing the required information prominently and conspicuously on the homepage of its internet website. In addition, if a business acting as a third party controls the collection of personal information about a consumer on its premises, including in a vehicle, then the business shall, at or before the point of collection, inform consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information are used, and whether that personal information is sold, in a clear and conspicuous manner at the location.
(c)A business collection, use, retention, and sharing of a consumers personal information shall be reasonably necessary and proportionate to achieve the purposes for which the personal information was collected or processed, or for another disclosed purpose that is compatible with the context in which the personal information was collected, and not further processed in a manner that is incompatible with those purposes.
(d)A business that collects a consumers personal information and that sells that personal information to, or shares it with, a third party or that discloses it to a service provider or contractor for a business purpose shall enter into an agreement with the third party, service provider, or contractor, that: that does all of the following:
(1)Specifies that the personal information is sold or disclosed by the business only for limited and specified purposes.
(2)Obligates the third party, service provider, or contractor to comply with applicable obligations under this title and obligate those persons to provide the same level of privacy protection as is required by this title.
(3)Grants the business rights to take reasonable and appropriate steps to help ensure that the third party, service provider, or contractor uses the personal information transferred in a manner consistent with the business obligations under this title.
(4)Requires the third party, service provider, or contractor to notify the business if it makes a determination that it can no longer meet its obligations under this title.
(5)Grants the business the right, upon notice, including under paragraph (4), to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.
(e)A business that collects a consumers personal information shall implement reasonable security procedures and practices appropriate to the nature of the personal information to protect the personal information from unauthorized or illegal access, destruction, use, modification, or disclosure in accordance with Section 1798.81.5.
(f)Nothing in this section shall require a business to disclose trade secrets, as specified in regulations adopted pursuant to paragraph (3) of subdivision (a) of Section 1798.185.
|
Date
|
Status
|
|---|---|
| Aug 15, 2024 | In committee: Held under submission. |
| Aug 12, 2024 | In committee: Referred to APPR suspense file. |
| Aug 6, 2024 | Re-referred to Com. on APPR pursuant to Joint Rule 10.5. |
| Aug 5, 2024 | Read second time and amended. Ordered to third reading. |
| Jul 3, 2024 | From committee: Amend, and do pass as amended. (Ayes 11. Noes 0.) (July 2). |
| May 29, 2024 | Referred to Com. on JUD. |
| May 16, 2024 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 16, 2024 | Read third time. Passed. Ordered to the Senate. (Ayes 65. Noes 0.) |
| May 6, 2024 | Read second time. Ordered to third reading. |
| May 2, 2024 | Read second time and amended. Ordered returned to second reading. |
| May 1, 2024 | From committee: Amend, and do pass as amended. (Ayes 11. Noes 0.) (April 30). |
| Apr 22, 2024 | Re-referred to Com. on JUD. |
| Apr 18, 2024 | Read second time and amended. |
| Apr 17, 2024 | From committee: Amend, and do pass as amended and re-refer to Com. on JUD. (Ayes 10. Noes 0.) (April 16). |
| Apr 1, 2024 | Re-referred to Com. on P. & C.P. |
| Mar 21, 2024 | Referred to Coms. on P. & C.P. and JUD. |
| Mar 21, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on P. & C.P. Read second time and amended. |
| Feb 17, 2024 | From printer. May be heard in committee March 18. |
| Feb 16, 2024 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 12, 2024 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 2, 2024 | Do pass as amended | Senate Standing Committee on Judiciary |
Passed |
|
| May 16, 2024 | AB 3080 Alanis Assembly Third Reading | Assembly Floor |
Passed |
|
| Apr 30, 2024 | Do pass as amended. | Assembly Standing Committee on Judiciary |
Passed |
|
| Apr 16, 2024 | Do pass as amended and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Privacy and Consumer Protection |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 3strands global foundation | ** Support | |
| Aclu California Action | ** Against | |
| Advocates for Youth | ** Against | |
| Bridge Network Corp | * Support | Apr 16, 2024 |
| California Baptist for Biblical Values | ** Support | |
| California Catholic Conference | ** Support | |
| California Central Valley | * Support | Apr 30, 2024 |
| California Family Council | ** Support | |
| California Resident | * Support | Apr 30, 2024 |
| Call Off Your Old Tired Ethics | ** Against | |
| Center for Lgbtq Economic Advancement & Research | ** Against | |
| Chamber Of Progress | ** Against | |
| Church State Council | ** Support | |
| Community Health Project LA | ** Against | |
| Concerned Women for America | ** Support | |
| Decriminalize Sex Work | ** Against | |
| Decrimsexworkca | ** Against | |
| Diamond Collective | * Support | Apr 16, 2024 |
| EducateUs | ** Against | |
| Electronic Frontier Foundation | ** Against | |
| equality federation | ** Against | |
| Exodus Cry | ** Support | |
| Family Policy Alliance | * Support | Apr 30, 2024 |
| Family Policy Alliance | * Support | Apr 16, 2024 |
| Family Policy Alliance | ** Support | |
| Foundation for Individual Rights and Expression | * Against | Apr 30, 2024 |
| Foundation for Individual Rights and Expression | ** Against | |
| Foundation for Individual Rights and Expression | * Against | Jul 2, 2024 |
| Free Speech Coalition | ** Against | |
| GLSEN | ** Against | |
| Interfaithstatewide Coalition | ** Support | |
| International Centre for Missing & Exploited Children | ** Against | |
| Lighthouse Baptist Church | ** Support | |
| Los Angeles Sex Therapy | ** Against | |
| Magdalene Hope | * Support | Apr 16, 2024 |
| Magdalene Hope, INC. | ** Support | |
| My Friend's House Assembly of God Church | ** Support | |
| National Abortion Federation | ** Against | |
| National Center for Lesbian Rights | ** Against | |
| National Coalition Against Censorship | ** Against | |
| National Federation Against Censorship | ** Against | |
| National Working Positive Coalition | ** Against | |
| Net Choice | * Against | Apr 16, 2024 |
| New Moon Network | ** Against | |
| NMAC | ** Against | |
| Oakland Privacy | ** Against | |
| Organization for Polyamory and Ethical Non-monogamy | ** Against | |
| pacific justice institute - center for public policy | ** Support | |
| People for the Abolishment of Trafficking Humans | * Support | Apr 16, 2024 |
| Perk Advocacy | ** Support | |
| Privacy Rights Clearinghouse | ** Against | |
| Real Impact | ** Support | |
| Reproaction | ** Against | |
| Rescue Grounds Coffee Company | * Support | Apr 16, 2024 |
| Restoration Ranch Women's Shelter | * Support | Apr 16, 2024 |
| Rise: Healthy for Life | ** Against | |
| Secular Student Alliance | ** Against | |
| Secure Justice | ** Against | |
| sex workers outreach project los angeles | ** Against | |
| Siecus: Sex Ed for Social Change | ** Against | |
| The Age Verification Providers Association | ** Against | |
| The Cupcake Girls | ** Against | |
| The Media Coalition | ** Against | |
| The Sidewalk Project | ** Against | |
| Transgender Law Center | ** Against | |
| TransYouth Liberation | ** Against | |
| Walt Disney Company | * Support | Apr 16, 2024 |
| Woodhull Action Fund | ** Against |
SENATE COMMITTEE ON
Senator Anna Caballero, Chair
2023 - 2024 Regular Session
AB 3080 (Alanis) - The Parent’s Accountability and Child Protection Act
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
AB 3080 would require a person or business that makes available products that are illegal to make available to minors, including pornographic internet websites, to take reasonable steps to ensure the user is of legal age at the time of access, including by verifying the age of the user.
Fiscal Impact:
- Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate additional claims of violations of this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.
- Unknown potential costs to the Department of Justice (DOJ) (General Fund) for the increased workload associated with investigating and prosecuting of violations of the requirements of this bill, and to promulgate regulations, as required by this bill.
Background:
Under existing law, it is a crime, subject to imprisonment, to distribute, sell, and exhibit pornography to minors with knowledge that a person is a minor, or to fail to exercise reasonable care in ascertaining the true age of a minor. (Pen. Code, § 313.1; see also, 18 U.S.C. §1470.)
Separately, the Parent’s Accountability and Child Protection Act (PACPA) requires a person or business that seeks to sell specified products or services that are illegal under state law to sell to a minor to take reasonable steps, as specified, to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
Proposed Law:
This bill expands the PACPA, as follows:
- Specifies that products that are illegal to make available to minors include pornographic internet websites.
- Defines “pornographic internet website” to mean a website on which the owner of the website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the website. “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Provides that a any person or business that conducts business in California, that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor shall take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
- Provides that reasonable steps include, but are not limited to, among other things:
- Requiring the user to use a nonprepaid credit card or debit card for online access;
- Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website;
- Implementation of a system that either includes metadata or response headers identifying the product as sexually explicit to parental control software, embedded hardware applications, and other similar services designed to block, filter, monitor, or otherwise prevent a minor’s access to inappropriate online content, or locks any user designed as a minor by the operating system of the device used to access the internet website.
- Requiring the user to use a nonprepaid credit card or debit card for online access;
- Requires the Attorney General to issue regulations further defining “reasonable steps” pursuant to these provisions, as provided.
- Provides that the penalty for a violation of the bill’s provisions with regard to certain products or services that are illegal to make available to minors may be assessed and recovered only in a civil action brought by the Attorney General.
Related Legislation:
- SB 976 (Skinner) prohibits operators of “internet-based services or applications” from providing “addictive feeds,” as those terms are defined, to minors without parental consent and from sending notifications to minors at night and during school hours without parental consent, as provided. This bill requires operators to make available to parents a series of protective measures for controlling access to and features of the platform for their children. This bill also requires reporting on data regarding children on their platforms, as specified. SB 976 is currently in pending on the Assembly Appropriations Committee Suspense File.
- AB 1949 (Wicks) removes the condition in the California Consumer Privacy Act that a business must have actual knowledge that the consumer is less than 16 years of age before placing restrictions on the selling or sharing of their data and revises the prohibition to prohibit a business from selling or sharing the personal information of a consumer less than 18 years of age, unless the consumer, or the consumer’s parent or guardian, as applicable, has affirmatively authorized the sale or sharing of the consumer’s personal information. AB 1949 would also require Privacy Protection Agency to establish an age verification system capable of determining when a business must treat a consumer as being under 13 or under 18. AB 1949 is currently pending on this Committee’s Suspense File.
- AB 2877 (Bauer-Kahan) would prohibit developers of AI systems or tools from using the personal information of children under 16 to train AI systems or services without first obtaining affirmative authorization. AB 2877 is currently pending on this Committee’s Suspense File.
-- END --
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 3080 |
THIRD READING
Bill No: AB 3080
Author: Alanis (R) and Hoover (R), et al.
Amended: 5/2/24 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 11-0, 7/2/24
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab
ASSEMBLY FLOOR: 65-0, 5/16/24 - See last page for vote
SUBJECT: The Parent’s Accountability and Child Protection Act
SOURCE: Author
DIGEST:
This bill requires a person or business that makes available products that are illegal to make available to minors, including pornographic internet websites, to take reasonable steps to ensure the user is of legal age at the time of access, including by verifying the age of the user.
ANALYSIS:
Existing law:
- Provides a right to free speech and expression. (U.S. Const., 1st amend; Cal. Const., art 1, § 2)
- Recognizes certain judicially created exceptions to the rights of freedom of speech and expression. (E.g., Virginia v. Black (2003) 538 U.S. 343, 359)
- Requires, pursuant to the Parent’s Accountability and Child Protection Act (PACPA), a person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor to, notwithstanding any general term or condition, take reasonable steps, as specified, to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser. (Civil (Civ.) Code § 1798.99.1(a)(1))
- Provides that reasonable steps include:
- Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, as specified.
- Requiring the purchaser to use a nonprepaid credit card for an online purchase.
- Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed.
- Shipping the product or service to an individual who is of legal age. (Civ. Code § 1798.99.1(a)(2))
- Lists the items subject to PACPA, including dangerous fireworks and firearms. (Civ. Code § 1798.99.1(b)-(c))
- Prohibits a person or business subject to PACPA from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age for any purpose other than as required by law. (Civ. Code § 1798.99.1(a)(6))
- Subjects violators to a civil penalty of up to $7,500 in actions brought by public prosecutors. (Civ. Code § 1798.99.1(d))
This bill:
- Requires a person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described, to take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
- Specifies that products that are illegal to make available to minors include pornographic internet websites.
- Defines “pornographic internet website” to mean a website on which the owner of the website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the website. “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Provides that reasonable steps as used above include, but are not limited to, any of the following:
- Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, as specified.
- Requiring the user to use a nonprepaid credit card or debit card for online access.
- Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
- Implementation of a system that does either of the following:
- Includes metadata or response headers identifying the product as sexually explicit to parental control software, embedded hardware applications, and other similar services designed to block, filter, monitor, or otherwise prevent a minor’s access to inappropriate online content.
- Blocks any user designed as a minor by the operating system of the device used to access the internet website.
- Provides that a person or business required to comply with the bill shall ensure that the reasonable step is designed to anonymize a user’s identity and is incapable of being used to create a record of the user’s online activity.
- Subjects violations to liability in actions brought by the Attorney General. The Attorney General is further required to promulgate regulations further defining what constitute reasonable steps.
- Becomes operative on January 1, 2027.
Background
The PACPA requires a person or business that seeks to sell any product or service that is illegal under state law to sell to a minor to, notwithstanding any general term or condition, take reasonable steps, as specified, to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
This bill expands on the PACPA to apply similar requirements on businesses that make available a product that is illegal to make available to children. It similarly requires reasonable steps be taken to verify age, including requiring the user to input, scan, provide, or display a government-issued identification, requiring the user to use a nonprepaid credit card or debit card for online access, and implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
This bill is supported by various organizations, including the California Catholic Conference and PERK Advocacy. It is opposed by a variety of organizations, including the Free Speech Coalition and the International Centre for Missing and Exploited Children. For a more thorough examination of the bill, please see the relevant Senate Judiciary Committee analysis.
Comments
According to the author:
Over the past decade, a remarkable shift has occurred: today's youth have unlimited access to pornographic content around the clock. Smartphones have rendered explicit sexual imagery pervasive, discreet, and easily accessible. Children often encounter this material without seeking it, with social media frequently serving as the gateway to pornographic websites. Many of the filters parents use to protect their children from such content have workarounds and glitches.
Pornography adversely affects the developing brains of children, hindering their growth. Studies indicate that it impacts users similarly to a drug, leading to addiction, altering neural connections, and diminishing the prefrontal cortex's ability to regulate executive functions and control impulses. Furthermore, it has degraded, and in numerous instances, undermined, the dynamics between genders. Some studies have even shown correlations between the rise of consumption of porn and the increase in sex trafficking, child pornography, and sexual abuse. California has long been on the forefront of legislation that aims to protect children from abuse and exploitation, yet, not restricting access to pornographic content leaves California minors at risk of psychological damage that could last a lifetime.
Just like retail and restaurant establishments are required to make a reasonable effort to verify the age of customers buying alcohol to prevent the negative effects on minors, AB 3080 prevents mental, emotional, physical, and developmental harm to California minors by requiring websites containing obscene and indecent material to adopt and operate reasonable age verification measures to ensure that users accessing the platform are not minors.
Expanding PACPA, there are many laws protecting children in California from harmful materials. AB 2511 (Chau, Chapter 872, Statutes of 2018) established PACPA to ensure that minors are not able to purchase specified items that they are not legally allowed to purchase. It requires businesses to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser. The law lists various conduct that meets this threshold, including requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, requiring the purchaser to use a nonprepaid credit card for an online purchase, and implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed.
This bill expands the PACPA and follows this framework to require a person or business that seeks to make available a product in California that is illegal under state law to make available to a minor, as described, to take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user. This bill provides conduct that would amount to taking reasonable steps, which largely mirror those already in the PACPA.
This bill provides that the products that are illegal to make available to minors include pornographic internet websites. Violations are subject to civil penalties of up to $7,500 per violations in actions brought by the Attorney General. The Attorney General is required to promulgate regulations to further define what constitutes reasonable steps. This bill has a delayed effective date of January 1, 2027.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 7/9/24)
3strands Global Foundation
California Baptist for Biblical Values
California Catholic Conference
Lighthouse Baptist Church
Perk Advocacy
Real Impact
OPPOSITION: (Verified 7/9/24)
ACLU California Action
Advocates for Youth
Call Off Your Old Tired Ethics
Community Health Project LA
Decriminalize Sex Work
Decrimsexworkca
Educateus
Electronic Frontier Foundation
Foundation for Individual Rights and Expression
GLSEN
International Centre for Missing & Exploited Children
Los Angeles Sex Therapy
National Center for Lesbian Rights
National Coalition Against Censorship
National Working Positive Coalition
New Moon Network
NMAC
Oakland Privacy
Organization for Polyamory and Ethical Non-monogamy
Privacy Rights Clearinghouse
RISE: Healthy for Life
Secular Student Alliance
Secure Justice
Sex Worker's Outreach Project Los Angeles
SIECUS: Sex Ed for Social Change
The Age Verification Providers Association
The Cupcake Girls
The Media Coalition
The Sidewalk Project
Transgender Law Center
Transyouth Liberation
Woodhull Action Fund
ARGUMENTS IN SUPPORT: California Baptists for Biblical Values writes:
The Bible says, “Be not deceived: evil communications corrupt good manners. Pornography viewing corrupts our society. In 2022, Common Sense performed a survey of 1,300 minors regarding their consumption of pornography. Most children gain access to pornography at the age that they receive their smartphones. 58% of the children were exposed to pornography accidentally. Among those who purposely consumed pornography, 71% of them viewed pornography within the week of the survey. An astounding 15% first viewed pornography at the age of 10 or younger. Pornography viewing by minors has detrimental effects. Dr. Sharon Cooper, a forensic pediatrician and faculty member at the University of North Carolina School of Medicine, maintains that “imagery definitely affects children” and that children receive unhealthy sexual images from adult pornography. Children observe what other people do and mimic those behaviors. Early porn exposure is tied to anxiety, violence, self-loathing, body dysphoria, addiction, and sexual function issues.
ARGUMENTS IN OPPOSITION: The International Centre for Missing and Exploited Children writes:
As CEO of a leading child protection organization, I write to you today because ICMEC is concerned that AB 3080, The Parent’s Accountability and Child Protection Act, will prove ineffective in protecting children and that foreseeable unintended consequences could create even more harmful situations for them.
- ICMEC’s experiences with existing regulations for internet companies suggest that there is no practical way to enforce platform-level age verification, which would require oversight of hundreds of thousands of sites, many of which are not U.S.-based but present significant exposure for children in the U.S.
- ICMEC’s experiences with internet companies suggest that many companies with a genuine interest in protecting children would fully comply with the regulation and even exceed its mandates, but significantly more companies would comply minimally by finding technological solutions to circumvent the intended protections or would not even attempt to comply not at all.
- We further expect that children in California would circumvent the anticipated protection by finding ways to access those non-compliant sites, often through simple actions like using a basic virtual private network (VPN). In this way, California law could have the effect of driving children to the offshore and dark web sites that we know present the most safety risks to children.
We strongly believe that a device-level approach to age verification would be more effective in protecting children.
ASSEMBLY FLOOR: 65-0, 5/16/24
AYES: Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Grayson, Haney, Hart, Holden, Hoover, Jones-Sawyer, Kalra, Lackey, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Weber, Wicks, Wilson, Wood, Robert Rivas
NO VOTE RECORDED: Addis, Cervantes, Megan Dahle, Essayli, Flora, Vince Fong, Gipson, Irwin, Jackson, Lee, Mathis, Rendon, Luz Rivas, Ward, Zbur
Prepared by: Christian Kurpiewski / JUD. / (916) 651-4113
7/31/24 15:30:56
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: AB 3080 (Author:Alanis)
Version: May 2, 2024
Hearing Date: July 2, 2024
Fiscal: No
Urgency: No
Consultant: CK
SUBJECT
The Parent’s Accountability and Child Protection Act
DIGEST
This bill requires a person or business that makes available products that are illegal to make available to minors, including pornographic internet websites, to take reasonable steps to ensure the user is of legal age at the time of access, including by verifying the age of the user.
EXECUTIVE SUMMARY
The Parent’s Accountability and Child Protection Act (PACPA) requires a person or business that seeks to sell any product or service that is illegal under state law to sell to a minor to, notwithstanding any general term or condition, take reasonable steps, as specified, to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
This bill expands on PACPA to apply similar requirements on businesses that make available a product that is illegal to make available to children. It similarly requires reasonable steps be taken to verify age, including requiring the user to input, scan, provide, or display a government-issued identification, requiring the user to use a nonprepaid credit card or debit card for online access, and implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
This bill is supported by various organizations, including the California Catholic Conference and PERK Advocacy. It is opposed by a variety of organizations, including the Free Speech Coalition and the International Centre for Missing and Exploited Children.
PROPOSED CHANGES TO THE LAW
Existing law:
- Provides a right to free speech and expression. (U.S. Const., 1st amend; Cal. Const., art 1, § 2.)
- Recognizes certain judicially created exceptions to the rights of freedom of speech and expression. (E.g., Virginia v. Black (2003) 538 U.S. 343, 359.)
- Requires, pursuant to PACPA, a person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor to, notwithstanding any general term or condition, take reasonable steps, as specified, to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser. (Civ. Code § 1798.99.1(a)(1).)
- Provides that reasonable steps include:
- Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, as specified.
- Requiring the purchaser to use a nonprepaid credit card for an online purchase.
- Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed.
- Shipping the product or service to an individual who is of legal age. (Civ. Code § 1798.99.1(a)(2).)
- Lists the items subject to PACPA, including dangerous fireworks and firearms. (Civ. Code § 1798.99.1(b)-(c).)
- Prohibits a person or business subject to PACPA from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age for any purpose other than as required by law. (Civ. Code § 1798.99.1(a)(6).)
- Subjects violators to a civil penalty of up to $7,500 in actions brought by public prosecutors. (Civ. Code § 1798.99.1(d).)
This bill:
- Requires a person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described, to take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
- Specifies that products that are illegal to make available to minors include pornographic internet websites.
- Defines “pornographic internet website” to mean a website on which the owner of the website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the website. “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Provides that reasonable steps as used above include, but are not limited to, any of the following:
- Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, as specified.
- Requiring the user to use a nonprepaid credit card or debit card for online access.
- Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
- Provides that a person or business required to comply with the bill shall ensure that the reasonable step is designed to anonymize a user’s identity and is incapable of being used to create a record of the user’s online activity.
COMMENTS
- Online pornography
According to the author:
Over the past decade, a remarkable shift has occurred: today's youth have unlimited access to pornographic content around the clock. Smartphones have rendered explicit sexual imagery pervasive, discreet, and easily accessible. Children often encounter this material without seeking it, with social media frequently serving as the gateway to pornographic websites. Many of the filters parents use to protect their children from such content have workarounds and glitches.
Pornography adversely affects the developing brains of children, hindering their growth. Studies indicate that it impacts users similarly to a drug, leading to addiction, altering neural connections, and diminishing the prefrontal cortex's ability to regulate executive functions and control impulses. Furthermore, it has degraded, and in numerous instances, undermined, the dynamics between genders. Some studies have even shown correlations between the rise of consumption of porn and the increase in sex trafficking, child pornography, and sexual abuse. California has long been on the forefront of legislation that aims to protect children from abuse and exploitation, yet, not restricting access to pornographic content leaves California minors at risk of psychological damage that could last a lifetime.
Just like retail and restaurant establishments are required to make a reasonable effort to verify the age of customers buying alcohol to prevent the negative effects on minors, AB 3080 prevents mental, emotional, physical, and developmental harm to California minors by requiring websites containing obscene and indecent material to adopt and operate reasonable age verification measures to ensure that users accessing the platform are not minors.
The author points to a recent opinion piece in the New York Times that connects children’s exposure to online pornography to dangerous sexual proclivities:
Sexual strangulation, nearly always of women in heterosexual pornography, has long been a staple on free sites, those default sources of sex ed for teens. As with anything else, repeat exposure can render the once appalling appealing. It’s not uncommon for behaviors to be normalized in porn, move within a few years to mainstream media, then, in what may become a feedback loop, be adopted in the bedroom or the dorm room.[1]
- Expanding PACPA
There are many laws protecting children in California from harmful materials. AB 2511 (Chau, Ch. 872, Stats. 2018) established PACPA to ensure that minors are not able to purchase specified items that they are not legally allowed to purchase. It requires businesses to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser. The law lists various conduct that meets this threshold, including requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, requiring the purchaser to use a nonprepaid credit card for an online purchase, and implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed.
This bill expands PACPA and follows this framework to require a person or business that seeks to make available a product in California that is illegal under state law to make available to a minor, as described, to take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user. The bill provides conduct that would amount to taking reasonable steps, which mirror those already in PACPA and listed above.
The bill provides that the products that are illegal to make available to minors include pornographic internet websites. Violations are subject to civil penalties of up to $7,500 per violations in actions brought by any public prosecutor. In response to concerns that have been raised, the author has agreed to limit enforcement of the provisions being added to PACPA by the bill to only actions brought by the Attorney General.
- Age verification concerns
Age verification laws have been pursued across the globe:
Government agencies, private companies, and academic researchers have spent years seeking a way to solve the thorny question of how to check internet users’ ages without the risk of revealing intimate information about their online lives. But after all that time, privacy and civil liberties advocates still aren’t convinced the government is ready for the challenge.
“When you have so many proposals floating around, it’s hard to ensure that everything is constitutionally sound and actually effective for kids,” Cody Venzke, a senior policy counsel at the American Civil Liberties Union (ACLU), tells The Verge. “Because it’s so difficult to identify who’s a kid online, it’s going to prevent adults from accessing content online as well.”
In the US and abroad, lawmakers want to limit children’s access to two things: social networks and porn sites. Louisiana, Arkansas, and Utah have all passed laws that set rules for underage users on social media. Meanwhile, multiple US federal bills are on the table, and so are laws in other countries, like the UK’s Online Safety Bill. Some of these laws demand specific features from age verification tools. Others simply punish sites for letting anyone underage use them — a more subtle request for verification.
Online age verification isn’t a new concept. In the US, laws like the Children’s Online Privacy Protection Act (COPPA) already apply special rules to people under 13. And almost everyone who has used the internet — including major platforms like YouTube and Facebook — has checked a box to access adult content or entered a birth date to create an account. But there’s also almost nothing to stop them from faking it.[2]
The author also cites a report by France’s National Commission on Informatics and Liberty (CNIL) that analyzes the various approaches to age verification, specifically in the context of pornographic sites. It lays out various approaches but cautions that most come with dire flaws:
With regard to the devices currently available on the market, the CNIL would first like to stress that the effectiveness of age verification tools depends on the operating rules of the Internet, which is designed as an open network, freely accessible to site users and publishers. While this finding should not prevent the pursuit of the legitimate objectives of protecting minors, care should also be taken to preserve the many benefits linked to this open model (innovation, freedom of expression, user autonomy, etc.). The move towards a closed digital world, where individuals are encouraged to register mainly in authenticated universes (via the creation of user accounts) to avoid a multiplication of identity or identity attribute verifications (age, address, diplomas, etc.) presents significant risks for the rights and freedoms of individuals, which need to be taken into account.
At present, all the solutions proposed can easily be circumvented. Indeed, the use of a simple VPN locating the Internet user in a country that does not require an age verification of this order can allow a minor to bypass an age verification system applied in France, or to bypass the blocking of a website that does not comply with its legal obligations. Similarly, it is difficult to certify that the person using a proof of age is the one who obtained it.
For example, in the UK, where such measures have long been considered, 23% of minors say they can bypass blocking measures and some pornographic content publishers already offer VPN services.
If the use of VPNs must be subject to a certain vigilance, it should be stressed that such technologies are also one of the essential building blocks of the security of exchanges on the Internet, used by many companies, but also by individuals wishing to protect their browsing from the tracking conducted by public or private stakeholders.[3]
On this latter point, the efficacy of age verification laws on the internet is drastically undercut by the ready access to VPNs. In fact, laws similar to this bill have led to a boom in the industry, as reported by Popular Science in an article entitled “Online porn restrictions are leading to a VPN boom”:
Internet users in a handful of states across the US are finding it more difficult to browse parts of the web anonymously. Over a dozen states, including Texas and Louisiana, have enacted legislation forcing Pornhub and other purveyors of streaming online adult videos to verify the identities of its users to ensure children and teens aren’t accessing “sexual material harmful to minors.” Elsewhere, in states like Florida, lawmakers have introduced so-called online parental consent laws that would limit or ban underage users from accessing social media services over claims they cause psychological harm. In each case, lawmakers want online platforms to collect government-IDs from users or have them submit to third-party age verification methods to ensure they are indeed adults.
But determining whether or not kids and teens are actually accessing those sites means platforms have no choice but to verify the ages of all users accessing their sites, minor or otherwise. Adult porn viewers, who could previously dip in and out of websites with a relative degree of anonymity, may now fear having their government name and photograph at arms length away from their last Pornhub search query. At the same time, critics of the new laws worry some far-right, religiously conservative lawmakers could broadly interpret “adult” material to include content from LGBTQ+ creators or other people from marginalized groups who rely on the internet for a sense of community. In that scenario, teens from abusive or difficult family structures could find themselves shut out from support structures online.
Experts speaking with PopSci say there are signs internet users in many of these states are turning to Virtual Private Networks (VPNs) to access otherwise blocked materials. Leading VPN provider Top10 VPN claims demand from VPN services jumped 275% on March 15, the same day Pornhub cut off access in Texas. The site says demand for VPNs similarly surged by 210% the day after a similar law took effect in Louisiana last year. ExpressVPN, another popular VPN provider, told PopSci it saw increased web traffic to its site the day anti-porn, online age verification bills took effect in seven out of eight states. . . .
VPNs, which date back to the mid 1990s, create an encrypted tunnel for user’s data and can make it appear as if their computer is based in a different geographical location.[4]
As this bill defines a pornography website as having sexually explicit content that exceeds one-third of its content, children intent on finding porn would not even need a VPN as many commonly available sites with such material are not subject to the law. For instance, the social network formerly known as Twitter recently formalized its policy to allow for sexually explicit content on its site, which likely does not currently make up more than one-third of its content.
The elephant in the room with such laws is the First Amendment to the United States Constitution. The First Amendment, as applied to the states through the Fourteenth Amendment, prohibits Congress or the states from passing any law “abridging the freedom of speech.”[5] “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[6] However, while the amendment is written in absolute terms, the courts have created a handful of narrow exceptions to the First Amendment’s protections, including obscenity. Expression on the internet is given the same measure of protection granted to in-person speech or statements published in a physical medium.[7]
A constitutional challenge to a restriction on speech is generally analyzed under one of two frameworks, depending on whether the courts deem it to be “content neutral” or “content based,” i.e., targeting a particular type of speech. A law is content neutral when it “serves purposes unrelated to the content of the expression.”[8] On the other hand, a law is content based when the proscribed speech is “defined solely on the basis of the content of the suppressed speech.”[9] If a restriction on speech is determined to be content based, it will be subject to strict scrutiny.[10] A restriction is content based “if it require[s] ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred.”[11] Content-based restrictions subject to strict scrutiny are “presumptively unconstitutional.”[12] A restriction can survive strict scrutiny only if it uses the least-restrictive means available to achieve a compelling government purpose.[13]
Specifically with reference to regulation of sexual content online, the United States Supreme Court in Reno v. ACLU (1997) 521 U.S. 844, 849 invalidated provisions of the Communications Decency Act of 1996 that established criminal penalties for the knowing transmission of obscene or indecent material in a manner likely to be accessible to a minor. Under the statute, an affirmative defense was available to “those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code.”[14] Stressing the vagueness and breadth of the statute, the Supreme Court reiterated the principle that the government’s interest in protecting children “does not justify an unnecessarily broad suppression of speech addressed to adults.”[15] The court also relied on the lower court’s findings that there was no effective way to verify a user’s age:
As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial--as well as some commercial--speakers who have Web sites to verify that their users are adults. These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that "despite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available.”[16]
Congress responded by passing the Child Online Protection Act (COPA), which imposed criminal penalties on operators of websites that knowingly post, for commercial purposes, material that is “harmful to minors.”[17] An affirmative defense, again, was available for those who take reasonable measures to prevent minors from accessing the website, including age verification.[18] In Ashcroft v. ACLU (2004) 542 U.S. 656, the United States Supreme Court affirmed the lower court’s ruling that enforcement of the law should be suspended during a pending lawsuit because the statute likely violated the First Amendment. Applying strict scrutiny, the Court found that COPA was likely unconstitutional because content filters installed on computers by parents were less restrictive and more likely to be effective than age verification.[19]
Recently, a Texas law seeking to impose age verification requirements on pornographic websites was challenged, in part, on First Amendment grounds. The United States District Court for the Western District of Texas, relying on Reno and Ashcroft, subjected the bill to strict scrutiny and found it violated the First Amendment.[20] However, on appeal, the Fifth Circuit Court of Appeals refused to apply the above Supreme Court precedent, and applied a rational basis test, which asks whether a speech restriction is rationally related to the government’s legitimate interest, a much less exacting standard.[21] Overturning the lower court’s ruling, the court found that the law did not violate the First Amendment.
The Free Speech Coalition writes in opposition to this bill arguing that it violates the First Amendment and highlights less restrictive means of achieving its goal:
In Reno v. ACLU, the Supreme Court found that the burdens posed by online age verification unnecessarily suppress access to protected speech, and that “less restrictive alternatives” — such as parental filters — ”would be at least as effective” at barring minors from seeing adult material. Such filters are regularly used by our schools and workplaces, and are available for free on phones, tablets, laptops and home WiFi networks. They are easy to set up and put power in the hands of parents, rather than the government.
Filters can be tailored to remove sites like Twitter and Reddit which allow adult content, but may not reach the threshold (⅓ of content published in a year) required for liability under this bill. Filters can also trigger “safe search” settings on search engines, which prevent adult content or sites from appearing in search results.
More importantly, filters can not be evaded by use of a VPN — software that allows users to evade the regulations by masking their location while browsing the internet. A study by Common Sense Media found that 40% of minors already use VPNs. In the past year we’ve seen usage of VPNs skyrocket in states like Louisiana and Texas that have passed legislation similar to the bill you’re considering. Unfortunately, in an effort to protect minors, AB-3080 will push more residents of California — young and old — to employ such tools, and encourage growth and traffic to less regulated, more dangerous areas of the web.
In response to the concerns of opposition, the author has agreed to amendments that allow a less restrictive means to suffice in meeting the obligation of the bill, mitigating the impact on protected speech and expression. The amendments provide that “reasonable steps” includes the business implementing a system that includes metadata or response headers identifying the product as sexually explicit to parental control software, embedded hardware applications, and other similar services designed to block, filter, monitor or otherwise prevent a minor’s access to inappropriate online content, or that blocks users designated as minors by the operating system of the device used to access the website. It also limits enforcement of this new cause of action to the Attorney General and requires the Attorney General to promulgate regulations to provide better direction for reasonable steps to verify age in addition to those listed.
- Stakeholder positions
California Baptists for Biblical Values writes in support:
The Bible says, “Be not deceived: evil communications corrupt good manners. Pornography viewing corrupts our society. In 2022, Common Sense performed a survey of 1,300 minors regarding their consumption of pornography. Most children gain access to pornography at the age that they receive their smartphones. 58% of the children were exposed to pornography accidentally. Among those who purposely consumed pornography, 71% of them viewed pornography within the week of the survey. An astounding 15% first viewed pornography at the age of 10 or younger. Pornography viewing by minors has detrimental effects. Dr. Sharon Cooper, a forensic pediatrician and faculty member at the University of North Carolina School of Medicine, maintains that “imagery definitely affects children” and that children receive unhealthy sexual images from adult pornography. Children observe what other people do and mimic those behaviors. Early porn exposure is tied to anxiety, violence, self-loathing, body dysphoria, addiction, and sexual function issues.
Similar age-verification bills have already passed in 8 states and been introduced in 26 others. Last month, the U.S. Court of Appeals for the Fifth Circuit upheld Texas’s age verification law. Its ruling stated, “Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography.... Therefore, the age-verification requirement does not violate the First Amendment.” Retail and restaurant establishments are required to make a reasonable effort to verify the age of customers buying alcohol to prevent the negative effects on minors. Websites with obscene and indecent material harmful to minors should be required to verify the age of their customers.
The International Centre for Missing and Exploited Children writes in opposition:
For ICMEC, age verification is a critical component in efforts to protect children, enhance online safety, and maintain ethical and legal standards in the digital era. Age verification is necessary to ensure compliance with laws and regulations related to explicit content, particularly when children are involved. Serving as a protective barrier, age verification measures make it challenging for children to access harmful content, acting as a deterrent against unintentional exposure, and enhancing the protection of children. As with any legislation, however, age verification laws must, first and foremost, be designed to effectively achieve their purpose: the protection of children. Critically, such laws must also carefully avoid unintended consequences that could prove harmful to children and, while prioritizing child safety, be conscientious of implications for adult internet users as well.
As CEO of a leading child protection organization, I write to you today because ICMEC is concerned that AB 3080, The Parent’s Accountability and Child Protection Act, will prove ineffective in protecting children and that foreseeable unintended consequences could create even more harmful situations for them.
- ICMEC’s experiences with existing regulations for internet companies suggest that there is no practical way to enforce platform-level age verification, which would require oversight of hundreds of thousands of sites, many of which are not U.S.-based but present significant exposure for children in the U.S.
- ICMEC’s experiences with internet companies suggest that many companies with a genuine interest in protecting children would fully comply with the regulation and even exceed its mandates, but significantly more companies would comply minimally by finding technological solutions to circumvent the intended protections or would not even attempt to comply not at all.
- We further expect that children in California would circumvent the anticipated protection by finding ways to access those non-compliant sites, often through simple actions like using a basic virtual private network (VPN). In this way, California law could have the effect of driving children to the offshore and dark web sites that we know present the most safety risks to children.
We strongly believe that a device-level approach to age verification would be more effective in protecting children.
SUPPORT
3strands Global Foundation
California Baptist for Biblical Values
California Catholic Conference
Lighthouse Baptist Church
Perk Advocacy
Real Impact
OPPOSITION
ACLU California Action
Advocates for Youth
Call Off Your Old Tired Ethics
Community Health Project LA
Decriminalize Sex Work
Decrimsexworkca (DECRIMSWCA)
Educateus
Electronic Frontier Foundation
Foundation for Individual Rights and Expression
Free Speech Coalition
GLSEN
International Centre for Missing & Exploited Children
Los Angeles Sex Therapy
National Coalition Against Censorship
National Working Positive Coalition
New Moon Network
NMAC
Oakland Privacy
Organization for Polyamory and Ethical Non-monogamy
Privacy Rights Clearinghouse
RISE: Healthy for Life
Secular Student Alliance
Secure Justice
Sex Worker's Outreach Project Los Angeles
SIECUS: Sex Ed for Social Change
The Cupcake Girls
The Media Coalition
The Sidewalk Project
Woodhull Action Fund
RELATED LEGISLATION
Pending Legislation:
SB 976 (Skinner, 2024) prohibits operators of “internet-based services or applications” from providing “addictive feeds,” as those terms are defined, to minors without parental consent and from sending notifications to minors at night and during school hours without parental consent, as provided. This bill requires operators to make available to parents a series of protective measures for controlling access to and features of the platform for their children. This bill also requires reporting on data regarding children on their platforms, as specified. SB 976 is currently in the Assembly Privacy and Consumer Protection Committee.
AB 1949 (Wicks, 2024) removes the condition in the California Consumer Privacy Act that a business must have actual knowledge that the consumer is less than 16 years of age before placing restrictions on the selling or sharing of their data and revises the prohibition to prohibit a business from selling or sharing the personal information of a consumer less than 18 years of age, unless the consumer, or the consumer’s parent or guardian, as applicable, has affirmatively authorized the sale or sharing of the consumer’s personal information. AB 1949 is currently in this Committee.
Prior Legislation: AB 2511 (Chau, Ch. 872, Stats. 2018) See Comment 2.
PRIOR VOTES:
Assembly Floor (Ayes 65, Noes 0)
Assembly Judiciary Committee (Ayes 11, Noes 0)
Assembly Privacy and Consumer Protection Committee (Ayes 10, Noes 0)
**************
Peggy Orenstein, The Troubling Trend in Teenage Sex (April 12, 2024) The New York Times, https://www.nytimes.com/2024/04/12/opinion/choking-teen-sex-brain-damage.html. All internet citations are current as of June 26, 2024. ↑
Emma Roth, Online age verification is coming, and privacy is on the chopping block (May 15, 2023) The Verge, https://www.theverge.com/23721306/online-age-verification-privacy-laws-child-safety. ↑
Online age verification: balancing privacy and the protection of minors (September 22, 2022) CNIL, https://www.cnil.fr/en/online-age-verification-balancing-privacy-and-protection-minors. ↑
Mack Degeurin, Online porn restrictions are leading to a VPN boom (April 3, 2024) Popular Science, https://www.popsci.com/technology/vpn-boom/. ↑
U.S. Const., 1st & 14th amends. ↑
Ashcroft v. American Civil Liberties Union (2002) 535 U.S. 564, 573. ↑
Reno v. ACLU (1997) 521 U.S. 844, 870. ↑
Ward v. Rock Against Racism (1989) 491 U.S. 781, 791. ↑
FCC v. League of Women Voters (1984) 468 U.S. 364, 383. ↑
McCullen v. Coakley (2014) 573 U.S. 464, 478. ↑
Id. at p. 479. ↑
Reed v. Town of Gilbert (2015) 135 S.Ct. 2218, 2226 (Reed). ↑
United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 813. ↑
Reno, 521 U.S. at pp. 860-861. ↑
Id. at p. 875. ↑
Id. at pp. 876-877. ↑
Ashcroft v. ACLU 542 U.S. at p. 661. ↑
Id. at p. 662. ↑
Id. at p. 673. ↑
Free Speech Coal., Inc. v. Colmenero (W.D. Tex. 2023) No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065, at *85. ↑
Free Speech Coal., Inc. v. Paxton (5th Cir. 2024) 95 F.4th 263. ↑
ASSEMBLY THIRD READING
ATR Bill Id:AB 3080
Author:(Alanis and Hoover)
As Amended Ver:May 2, 2024
Majority vote
SUMMARY
Requires a person or business that makes a pornographic website available in California to take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
Major Provisions
- Integrates pornographic websites into the existing Parent's Accountability and Child Protection Act, which requires a person or business that conducts business in California and that seeks to sell specified products or services to take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including verifying the age of the purchaser. Sets forth different means of verifying age, including requiring a government-issued identification or credit card, or implementing a system that restricts individuals with accounts designated as minor accounts.
- Requires a pornographic website to ensure that means of verifying the user's age is designed to anonymize the user's identity and is incapable of being used to create a record of the user's online activity.
- Defines "pornographic internet website" as a website that, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website. Defines "sexually explicit content" as visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
COMMENTS
Online pornography's harms to minors. A recent New York Times article entitled "The Troubling Trend in Teen Sex" described a study finding that nearly two-thirds of the students at a major Midwestern university had experienced "rough sex," particularly sexual strangulation, which was rarely consensual. Over the past four years, "[t]he rate of those women who said they were between the ages of 12 and 17 the first time that happened shot up to 40% from one in four." The article connected this trend directly to the availability of free online pornography:
Sexual strangulation, nearly always of women in heterosexual pornography, has long been a staple on free sites, those default sources of sex ed for teens. As with anything else, repeat exposure can render the once appalling appealing. It's not uncommon for behaviors to be normalized in porn, move within a few years to mainstream media, then, in what may become a feedback loop, be adopted in the bedroom or the dorm room.[1]
Related efforts. A number of other states—Arkansas, Mississippi, Montana, North Carolina, Texas, Utah, Virginia, and most recently Kentucky—have adopted age-verification requirements aimed at pornographic websites, based on model legislation from the Center For Renewing America, a socially conservative think tank.[2] These efforts have generated concerns over privacy, internet freedom, and free speech. In Arizona, Governor Katie Hobbs recently vetoed such a bill, stating that any solution should "work within the bounds of the First Amendment, which this bill does not."[3] Meanwhile, major pornography sites, such as Pornhub, have blocked users in these states from visiting their sites, leading to spikes in searches for virtual private networks, which enable users to mask their geographic location.[4]
The Parent's Accountability and Child Protection Act. The Parent's Accountability and Child Protection Act (AB 2511 (Chau) Chapter 872, Statutes of 2018) requires sellers of products or services that are illegal to sell to minors to take reasonable steps to ensure that the purchaser is of legal age at the time of the purchase or delivery, including but not limited to verifying the age of the purchaser. Reasonable steps include (1) the provision of a government-issued identification, subject to all laws governing retention, use, and disclosure of personally identifiable information, (2) requiring the purchaser to use a nonprepaid credit card for an online purchase, or (3) implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the prohibited products. The act prohibits a person from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age, unless required by law. Violators are liable for a civil penalty of up to $7500 in actions brought by public prosecutors.[5]
Age-verification technology. A 2022 report by France's National Commission on Informatics and Liberty (CNIL) "analyzed the main types of age verification systems in order to clarify its position on age verification on the Internet, particularly on pornographic sites for which such verification is mandatory. It specifies how such publishers could fulfil their legal obligations. However, CNIL finds that such current systems are circumventable and intrusive, and calls for the implementation of more privacy-friendly models."[6] On the other hand, the Age Verification Providers Association asserts this technology is rapidly evolving and that "the ease of use of the wide variety of methods of age verification, and the data minimization designed into these approaches so personally identifiable data need never be retained."
As recently amended, the bill requires that a website operator subject to the bill "shall ensure that the reasonable step is designed to anonymize a user's identity and is incapable of being used to create a record of the user's online activity."
Constitutional considerations. Sexual expression that is indecent but not obscene is protected by the First Amendment. Content-based restrictions on protected speech, including sexual speech, are subject to "strict scrutiny" and are valid only if the government proves the restriction is "narrowly tailored" to achieve a compelling purpose and that there is no less restrictive means available of achieving that purpose.[7] Finding that protecting children from pornographic content likely constitutes a compelling purpose, the Assembly Judiciary Committee's analysis concluded that this bill could withstand strict scrutiny:
The remaining question would then be whether this statute is narrowly tailored, and whether there is a less restrictive alternative. A couple points lend themselves to supporting an affirmative answer on this point. First, the bill does not prohibit the distribution of pornography, nor does it seem to impose stringent hurdles to accessibility. Instead, it merely requires a provider of the content to "take reasonable steps to ensure" the individual accessing the content is an adult. The reasonable steps can be submission of a government identification card, requiring the user to use a nonprepaid credit card or debit card, or only authorizing adult accounts. The only method that is expressly prohibited is obtaining consent from the minor. Otherwise, it appears as though websites are free to impose whichever measure they consider "reasonable" to ensure that their users are of legal age. Arguably, by granting websites the latitude to identify the most appropriate way to engage in the age verification this bill avoids unduly burdening these platforms with unwieldy regulations.
The analysis examines key precedents that held related laws invalid, concluding that "it appears that this proposed measure may be sufficiently distinct from the statutes at issue" in those precedents. For more discussion, see the Assembly Judiciary Committee's analysis at pp. 3-6.
According to the Author
Over the past decade, a remarkable shift has occurred: today's youth have unlimited access to pornographic content around the clock. Smartphones have rendered explicit sexual imagery pervasive, discreet, and easily accessible. Children often encounter this material without seeking it. Many of the filters parents use to protect their children from such content have workarounds and glitches.
Studies have shown, pornography adversely affects the developing brains of children, hindering their growth and impacts young users similarly to a drug, leading to addiction, altering neural connections, and diminishing the prefrontal cortex's ability to regulate executive functions and control impulses. Furthermore, it has degraded, and in numerous instances, undermined, the dynamics in relationships. Some studies have even shown correlations between the rise of consumption of porn and the increase in sex trafficking, child pornography, and sexual abuse. California has long been on the forefront of legislation that aims to protect children from abuse and exploitation, yet, not restricting access to pornographic content leaves California minors at risk of psychological damage that could last a lifetime.
This bill is a narrowly constructed bill that amends California's existing Parent's Accountability and Child Protection Act to require pornographic internet websites that publishes more than one-third sexually explicit content, to take reasonable steps to verify the age of users while also ensuring that reasonable steps are taken to anonymize a user's identity and prevent any record of a user's online activity.
Arguments in Support
Family Policy Alliance writes:
With the rise of technology, minors currently have nearly unlimited access to adult websites, many of which contain inappropriate and pornographic material. In fact, studies show that by the age of 17, about 75% of adolescents have been exposed to pornography. This statistic is quite alarming and is made possible by the fact that many of these websites are accessible without parental involvement through age verification. Parents have the right and the ultimate responsibility of directing the upbringing of their children. As a result, age verification requirements for adult websites are necessary to help prevent adolescents from accessing inappropriate and pornographic material. These bills help put parents back in their rightful place of controlling whether and how their children engage with dangerous pornographic material online.
Arguments in Opposition
The Free Speech Coalition writes:
The adult industry whole-heartedly supports efforts to keep minors from material that is age-inappropriate or harmful. Aside from the moral and ethical issues involved with minors accessing our content, it is a financial drain on our industry. Were the promises of age verification companies to prevent minors from accessing our sites while not significantly impacting the ability of legal adults to access our content, we would eagerly embrace their technology. Unfortunately, that is not the case and AB-3080 continues to present significant practical, technical and legal problems that render its ability to protect children limited while creating dangerous privacy risks for adults, and violating the First Amendment rights of both consumers and producers.
FISCAL COMMENTS
No fiscal impact.
VOTES
ASM PRIVACY AND CONSUMER PROTECTION: 10-0-1
YES: Bauer-Kahan, Joe Patterson, Bryan, Dixon, Hoover, Irwin, Lowenthal, Ortega, Wicks, Wilson
ABS, ABST OR NV: Ward
ASM JUDICIARY: 11-0-1
YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez
ABS, ABST OR NV: Essayli
UPDATED
VERSION: May 2, 2024
CONSULTANT: Josh Tosney / P. & C.P. / (916) 319-2200 FN: 0002860
Orenstein, The Troubling Trend in Teenage Sex (Apr. 12, 2024) New York Times, Opinion | The Troubling Trend in Teenage Sex - The New York Times (nytimes.com). ↑
Center for Renewing America, Combatting Obscenity on the Internet, Combating Obscenity on the Internet: A Legal and Legislative Path Forward | The Center for Renewing America (americarenewing.com) ↑
Barchenger, Arizona will not require age verification for porn sites after Governor vetoes GOP bill (Apr. 8, 2024) Arizona Republic, https://www.msn.com/en-us/news/politics/arizona-will-not-require-age-verification-for-porn-sites-after-governor-vetoes-gop-bill/ar-BB1linhy. ↑
Brown, Pornhub Pulls Out of Seventh State (Mar. 18, 2024), Reason.com, Pornhub Pulls Out of Texas Because of Age Verification Law (reason.com). ↑
Civ. Code § 1798.99.1. ↑
Online age verification: balancing privacy and the protection of minors (Sept 22, 2022), https://www.cnil.fr/en/online-age-verification-balancing-privacy-and-protection-minors. ↑
Sable Communications of Cal. v. FCC (1989) 492 U.S. 115, 126. ↑
Date of Hearing: April 30, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
ABPCA Bill Id:AB 3080
Author:(Alanis) – As Amended Ver:April 18, 2024
As Proposed to be Amended
SUBJECT: The Parent’s Accountability and Child Protection Act
KEY ISSUE: should THE PARENT’S ACCOUNTABILITY AND CHILD PROTECTION ACT BE EXPANDED TO REQUIRE INTERNET PORNOGRAPHIC WEBSITES TO CONDUCT REASONABLE AGE VERIFICATION STEPS TO ENSURE USERS ARE AT LEAST 18 WHEN ACCESSING THEIR CONTENT?
SYNOPSIS
Enacted in 2019, AB 2511 (Chau, Chap. 872, Stats. 2018) established the Parent’s Accountability and Child Protection Act (PACPA). As detailed in the legislative history, the purpose of the statute was to protect children by ensuring they are unable to buy items they are not legally allowed to purchase. Under the existing statute, businesses in California that make certain products available that are illegal for purchase by a minor must take “reasonable steps” to ensure the purchaser is of legal age prior to purchase or delivery. This bill expands PACPA to also capture pornography websites, and as such would require the sites, as defined, to engage in reasonable age verification to ensure intending users are of legal age before accessing the website’s content.
This bill is sponsored by the California Family Council, the Family Policy Alliance, and the Age Verification Providers Association. It is supported by a number of faith-based organizations, including the California Catholic Conference, California Baptist for Biblical Values, and Interfaith Statewide Coalition. It is also supported by the Concerned Women for America Legislative Action Committee, Exodus Cry, Pacific Justice Institute, and the Age Verification Providers Association. It is opposed by the Electronic Frontier Foundation (EFF), the Free Speech Coalition, the Chamber of Progress, Foundation for Individual Rights and Expression (FIRE), and Oakland Privacy. A number of organizations opposed a previous version of the measure and have not updated their position since the bill was amended. This bill was previously heard by the Assembly Committee on Privacy and Consumer Protection which voted to approve the bill on a vote of 10 – 0.
SUMMARY: Expands the Parent’s Accountability and Child Protection Act to include pornographic internet websites. Specifically, this bill:
- Defines the following for the purposes of this bill:
- “Pornographic internet website” means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website;
- “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Requires a person or business that conducts business in California and seeks to make a pornographic internet website available to take reasonable steps to ensure the user is of a legal age at the time of access, including, but not limited to, verifying the age of the purchaser.
- Specifies that reasonable steps for the purpose of 2) include, but are not limited to, any of the following:
- Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, specified provisions of the Civil Code and Business and Professions Code;
- Requiring the user to use a nonprepaid credit card or debit card for online access;
- Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
EXISTING LAW:
- Requires sellers of products or services that are illegal to sell to minors to take reasonable steps to ensure that the purchaser is of legal age at the time of the purchase or delivery, including but not limited to verifying the age of the purchaser. (Civil Code Section 1798.99.1 (a). Unless otherwise specified all further statutory references are to the Civil Code.)
- Provides that reasonable steps include:
- The provision of a government-issued identification, subject to all laws governing retention, use, and disclosure of personally identifiable information,
- Requiring the purchaser to use a nonprepaid credit card for an online purchase, or
- Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the prohibited products. (Section 1798.99.1 (a)(2).)
- Prohibits a person or business subject to 1) from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age for any purpose other than as required by law. (Section 1798.99.1 (a)(6).)
- Subjects violators of 1) to a civil penalty of up to $7500 in actions brought by public prosecutors. (Section 1798.99.1 (d).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: Enacted in 2019, AB 2511 (Chau, Chap. 872, Stats. 2018) established the Parent’s Accountability and Child Protection Act (PACPA). As detailed in the legislative history, the purpose of the statute was to protect children by ensuring they are unable to buy items they are not legally allowed to purchase. Under the existing statute, businesses in California that make certain products available that are illegal for purchase by a minor must take “reasonable steps” to ensure the purchaser is of legal age prior to purchase or delivery, including but not limited to, verifying the purchaser’s age. PACPA further authorizes public prosecutors to enforce against violations by bringing a civil claim against a business in violation of the statute’s requirement and collecting civil penalties of up to $7,500.
According to the author: Existing state and federal laws regulate the availability of pornography to minors. Federal law makes it a crime to distribute “obscene material” to someone under the age of 16. (18 USCS 1470.) The existing Parent’s Accountability and Child Protection Act (PACPA) already imposes age verification requirements on sellers of a variety of products such as aerosol containers, body branding products, certain dietary products, and firearms.
This bill expands PACPA to capture pornography websites. The bill defines “pornographic internet websites” as a website on which the owner, for commercial gain, knowingly publishes sexually explicit content that annually exceeds one-third of the website’s content. It further defines “sexually explicit content” to mean visual imagery of an individual or individuals engaging in specified sexual acts that, taken as a whole, lack serious literary, artistic, political, or scientific value.
Pursuant to the amendment to PACPA proposed by this measure, porn websites, as defined, would be legally obligated to engage in “reasonable steps” to ensure their users are of legal age. As with the existing statutory structure, the “reasonable steps” are not specifically assigned but rather “include, but are not limited to” a number of options such as requiring submission of a government ID, requiring the use of a nonprepapid credit card for an online purchase, or implementing a system that enables only individuals with accounts designated as adult accounts to access the website. The only requirement imposed by the bill is that the website take reasonable steps. What those steps ultimately look like appears to be left to the websites themselves to determine.
A number of opponents contend that the bill would require websites to verify the identity and age of all users. However, it seems that there is a fundamental distinction to be made here – the bill does not require websites to verify the identity of a user, merely to take reasonable steps to ensure the user is of legal age. While folks may disagree about what methods constitute “reasonable steps,” it is important to note that the requirement is only as to an age verification and does not necessarily require collection of personally identifying information.
First Amendment concerns. Any legislation proposing to limit access to specific content raises a potential First Amendment concern. The First Amendment of the United States Constitution provides that, “Congress shall make no law abridging the freedom of speech, or of the press.” [Emphasis added.] As applied to the states through the Fourteenth Amendment, and as interpreted by the courts, the First Amendment prohibits any law or policy, at any level of government, from abridging freedom of speech. Legislation seeking to regulate speech can generally be distinguished as either content-based or content-neutral. Content-based laws, or laws that target a particular type of speech, must meet a strict scrutiny standard and must therefore be the least restrictive means to achieve a compelling government purpose in order to withstand legal challenge. Content neutral laws, on the other hand, or laws which serve a purpose unrelated to the speech itself, need only pass intermediate scrutiny. Under this standard, the law “need not be the least restrictive or least intrusive means of serving the government’s interests,” but “may not regulate expression in a manner that a substantial portion of the burden on speech does not serve to advance its goals.”
Supreme Court jurisprudence has identified various categories of speech and determined how much each is protected by the First Amendment. These categories can first be broken down into two primary categories – protected or unprotected. Protected speech benefits from the full shield of the First Amendment and cannot be regulated by the government unless the regulation is narrowly tailored to meet a compelling government interest. Unprotected speech is speech that has been found to be “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,” and thus may be subject to government regulation. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 383.) Unprotected speech can be broken down further into various categories including: true threats; obscenity; defamation; and incitement to imminent lawless action. Obscenity is defined through the following three-pronged test referred to as the Miller test. (Miller v. California, 413 U.S. 15 (1972).) Briefly, the Miller test asks 1) whether the average person, applying contemporary community standards, would find that the work taken as a whole appears to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Pornography, by its nature alone, is not necessarily “obscenity.” Therefore, while some pornographic material may rise to the level of obscenity and therefore fall outside the scope of First Amendment protections, not all of it does. Pornographic content that is not obscene enjoys First Amendment protections and any restriction on such content must survive strict scrutiny. (Sable Communications of Cal. v. FCC (1989) 492 US 115, U.S. v. Playboy Entertainment Group (2000) 529 U.S. 803.)
The number of federal and state laws regulating minors’ access to pornography reflects the significant government interest in protecting children from potentially harmful and inappropriate content. Many have argued that access to this conduct at too young of an age causes significant harm to minors, including poor mental health and increased levels of sexual violence. (Protection of children from the harmful impacts of pornography, UNICEF available at: https://www.unicef.org/harmful-content-online.) Moreover, a number of Supreme Court decisions have likewise affirmed the government’s compelling interest in protecting minors from inappropriate sexual content. (See Ginsberg v. New York (1968) 390 U.S. 629, FCC v. Pacifica Found (1978) 438 U.S. 726.) Therefore, if challenged it seems likely the state would be able to adequately demonstrate a compelling government interest.
The remaining question would then be whether this statute is narrowly tailored, and whether there is a less restrictive alternative. A couple points lend themselves to supporting an affirmative answer on this point. First, the bill does not prohibit the distribution of pornography, nor does it seem to impose stringent hurdles to accessibility. Instead, it merely requires a provider of the content to “take reasonable steps to ensure” the individual accessing the content is an adult. The reasonable steps can be submission of a government identification card, requiring the user to use a nonprepaid credit card or debit card, or only authorizing adult accounts. The only method that is expressly prohibited is obtaining consent from the minor. Otherwise, it appears as though websites are free to impose whichever measure they consider “reasonable” to ensure that their users are of legal age. Arguably, by granting websites the latitude to identify the most appropriate way to engage in the age verification this bill avoids unduly burdening these platforms with unwieldy regulations.
A number of the opponents point to Supreme Court precedent set by United States v. Playboy Entertainment Group, in which the Supreme Court answered whether a provision of the federal Telecommunications Act violated Playboy Entertainment Group’s First Amendment rights. The challenged law required cable television operators that provided channels “primarily dedicated to sexually-explicit programming” to either “fully scramble or otherwise fully block” those channels or limit their transmission during specified hours. The majority of cable providers opted to comply with the law by blocking those channels during specified hours, resulting in a widespread elimination of sexually explicit programing during those timeframes. Playboy challenged the requirement as “unnecessarily restrictive content-based legislation violative of the First Amendment.” (United States v. Playboy Entertainment Group (2000) 529 U.S. 803, p. 807.) In its decision, the Court sided with Playboy, holding that “[w]hen a plausible, less restrictive alternative is offered to a content-based restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals. The Government has not met that burden here.” (Id. at p. 816.)
The current measure appears to be distinguishable from the statute at issue in Playboy on a singularly important point – this bill does not prescribe the manner in which platforms must verify a user’s age. As discussed, the bill merely requires a platform to engage in “reasonable steps” to ensure that minors are not accessing their content.
Opponents also rely on the Supreme Court’s decision in Reno v. ACLU to support their contention that this bill fails to comply with the First Amendment. In Reno v. ACLU, the American Civil Liberties Union (ACLU) challenged two provisions of the Communications Decency Act of 1996 which criminalized the “knowing transmission of obscene or indecent messages to any recipient under 18 years of age […] by means of a telecommunications device,” as well as the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” (Reno v. ACLU (1997) 521 U.S. 844, 859.)
In this case the Court again sided with the challengers on numerous grounds including that, “the CDA is a criminal statute. […] The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” (Id. at p. 872) Further, the Court reasoned “[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” (Id. at p. 899) Further, they wrote: “[i]t is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. […] But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.” (Id. at p. 900) Finally, “[t]he breadth of the CDA’s coverage is wholly unprecedented. Unlike regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent materials or displaying them on their own computers in the presence of minors. The general, undefined terms of ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value.” (Id. at p. 878).
As with Playboy, it seems that the Court’s reasoning in Reno v. ACLU may not apply to this bill. First, the bill does not impose criminal liability. Instead, it amends an existing statute that could raise civil liability in a claim brought by a public prosecutor. Second, the scope of the prohibition implemented by the CDA was seemingly much more expansive than that imposed by this bill. The CDA prohibited any knowing transmission of obscene or indecent messages to a minor, as well as the sending or displaying of such content in a manner that is available to a minor. The CDA’s prohibition, as reasoned by the court, captured non-commercial and educational sites, as well as commercial platforms, thereby broadly imposing unnecessary and burdensome requirements. This bill does not appear to impose such sweeping prohibitions. Instead, the requirement would apply only to “pornographic internet websites” defined as a website on which the owner, for commercial gain, knowingly publishes sexually explicit content that exceeds one-third of the content published on the website in a given year. The bill also defines “sexually explicit material” in a manner that mirrors existing law and exempts content with any “serious literary, artistic, political, or scientific value.” Theoretically, these definitions function in tandem to only capture platforms providing access to pornographic materials only, rather than also capturing platforms that provide “nonpornographic material with serious educational or other value.” Therefore this bill appears to present a much more narrowly tailored requirement than the statute at issue in Reno v. ACLU.
While no committee analysis can guarantee a bill’s success or failure when faced with a First Amendment challenge, it appears that this proposed measure may be sufficiently distinct from the statutes at issue in U.S. v. Playboy Entertainment Group and Reno v. ACLU to withstand legal review.
Proposed amendments. A number of opponents contend that the bill would risk unduly infringing on individuals’ privacy in order to access constitutionally protected content. For example, the Electronic Frontier Foundation (EFF) writes:
[AB 3080] would require businesses to collect information to verify the ages of anyone visiting a website that is deemed to offer ‘sexually explicit material.’ Age verification systems are surveillance systems. Requiring age verification, which relies on identity verification, is the wrong approach to protecting young people online. […] It is a significant privacy violation to require all people to submit either their official government-issued identification credentials, or to delve into their transactional history […] to attempt to determine their age, particularly if that person is an adult for whom there are no restrictions to view such material. Given the stigma around sexually explicit material online, if a bank or other records-holder was told why a site wanted to verify information, it could also have unfair and serious consequences for an adult viewing these sites.
As previously discussed, submission of government-issued identification is only one potential method a website could choose to adopt in order to verify a user’s age. If the website determines, as EFF contends, that doing so would constitute an unfair infringement on their users’ privacy, they could identify a different approach. More than likely, websites may consider the burden of the age-verification requirements on their potential users and be incentivized to only implement those which do not drive users away from their platforms.
Nonetheless, the risk of stigmatizing lawful behavior as EFF identifies is an understandable concern. In order to address this issue, the author proposes to amend the bill to require any of the reasonable steps identified by the website to protect the identity of the intending user. The amendment would read as follows:
Civil Code Section 1798.99.1
(a)(5)(B) A person or business required to comply with paragraph (2) shall ensure that the reasonable step is designed to anonymize a user’s identity and is incapable of being used to create a record of the user’s online activity.
Additionally, the author propose various technical amendments as follows:
Civil Code Section 1798.99.1. (a) (1) A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), or to make available a product as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2) A person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
[…]
(A) Reasonable steps as used in paragraph (1) (2) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
[…]
(9) For purposes of this subdivision, “user” means a person who intends to access a product in California that is illegal under state law to make available to a minor, as described in subdivision (d).
ARGUMENTS IN SUPPORT: This bill is sponsored by the California Family Council, the Family Policy Alliance, and the Age Verification Providers Association. It is supported by a number of faith-based organizations including the California Catholic Conference, California Baptist for Biblical Values, and Interfaith Statewide Coalition. It is also supported by the Concerned Women for America Legislative Action Committee, Exodus Cry, and Pacific Justice Institute.
The Family Policy Alliance submits:
With the rise of technology, minors currently have nearly unlimited access to adult websites, many of which contain inappropriate and pornographic material. In fact, studies show that by the age of 17, about 75% of adolescents have been exposed to pornography. This statistic is quite alarming and is made possible by the fact that many of these websites are accessible without parental involvement through age verification. Parents have the right and the ultimate responsibility of directing the upbringing of their children. As a result, age verification requirements for adult websites are necessary to help prevent adolescents from accessing inappropriate and pornographic material. These bills help put parents back in their rightful place of controlling whether and how their children engage with dangerous pornographic material online.
Research has proven that pornography harms children. In fact, studies show that 88.2% of pornographic videos depict sexual violence, while 48.7% of these same videos include some kind of verbal abuse. Furthermore, studies show that 53% of male adolescents and 39% of female adolescents actually believe the lie that pornography is an accurate portrayal of sex. Thus, adolescents are learning about sexuality from a perspective which portrays sex as physical abuse, instead of receiving age-appropriate sex education from a parent or guardian.
In addition, studies reveal that out of those individuals who have been exposed to pornography, 58% accessed the material unintentionally.4 As a result, adolescents are becoming addicted to pornography through interaction with certain websites that parental involvement could have prevented. Therefore, the age verification requirements in A.B. 3080 are necessary to prevent minors from encountering inappropriate and pornographic material and to empower parents to protect their kids from such exposure. Finally, right now the average age of first exposure to pornography is between the ages of 7 and 13; therefore, it is essential for legislation to restore parental rights to protect their children from pornography.
Not only does pornography harm children’s mental well-being – there is also a strong correlation between pornography, human trafficking, and sexual abuse. In fact, research reveals that it is impossible to determine whether pornographic videos portray consensual sex, as many adult sites contain explicit videos and images of adults and minors, who have not consented to filming such content. Sex trafficking is the supply side of the pornography industry. Therefore, age verification requirements are crucial to preventing such abuse by limiting the access of pornography and explicit material to minors, thereby curbing the demand for that supply.
Some have argued against these measures, claiming that the government should stay out of matters relating to children’s online access and that the decision ultimately belongs to parents. We wholeheartedly affirm that decisions pertaining to a child’s time online belong to parents. This is why we so strongly support this bill. The age verification requirements will place these choices and others back into the hands of parents across California.
California is not the first state to propose a bill like this. Seven states passed similar legislation last year, and another eight have passed them this year. Most of these bills have been bipartisan efforts, including some where the legislative houses voted unanimously to pass the bill. Most of these bills have withstood judicial scrutiny: for example, the 5th Circuit Court recently upheld one of these bills in a landmark decision. The Court made clear that states have a compelling interest in protecting children from internet pornography, and that bills like A.B. 3080 do not violate the First Amendment.
Parental rights are the backbone of the family, and one of parents’ rights is to protect their child’s innocence. A.B. 3080 restores this right by reestablishing the role of parents in their children’s consumption of online material.
ARGUMENTS IN OPPOSITION: This bill is opposed by the Electronic Frontier Foundation (EFF), the Free Speech Coalition, the Chamber of Progress, the Foundation for Individual Rights and Expression (FIRE), and Oakland Privacy. A number of organizations, including Chamber of Progress, the Foundation for Individual Rights and Expression (FIRE), Oakland Privacy, and the Woodhull Freedom Foundation submitted opposition to a previous version of this measure but have not submitted updated letters relating to the version currently in print, thus it is unclear whether they maintain their opposition. The Free Speech Coalition writes:
While we applaud the bill’s sponsor, Asm. Alanis, for his willingness to amend the legislation in response to the Committee on Privacy and Consumer Protection Committee analysis, the new language does not resolve the fundamental constitutional issues or change the fact that the policy approach is ineffective.
The adult industry whole-heartedly supports efforts to keep minors from material that is age-inappropriate or harmful. Aside from the moral and ethical issues involved with minors accessing our content, it is a financial drain on our industry. Were the promises of age verification companies to prevent minors from accessing our sites while not significantly impacting the ability of legal adults to access our content, we would eagerly embrace their technology. Unfortunately, that is not the case and AB-3080 continues to present significant practical, technical and legal problems that render its ability to protect children limited while creating dangerous privacy risks for adults, and violating the First Amendment rights of both consumers and producers.
[…]
Age-Verification Laws Have Pushed Consumers to Unsafe Websites
Six laws mandating age-verification on adult content websites took effect in 2023. We’ve collected information on how they impact websites and users in reality and the results are abysmal. When major adult websites attempted to comply with the regulations, they found that the vast majority of adult consumers — as many as 97% — refuse to submit their ID or otherwise engage in other age-verification protocols.
Submitting a government-issued ID online to view sensitive, First Amendment-protected content is simply not the same as flashing an ID at a checkout counter to purchase fireworks. The process is expensive for websites and complicated for consumers, most of whom fear the real risks of surveillance, identity theft and exposure of their most private viewing behaviors. Proponents of these laws have promised that this information will never be shared, but over 353 million Americans were victims of data compromises in 2023, including data breaches, leakage, and exposure. In Utah and Louisiana, we have had reports of phishing scams, identity theft and extortion as a result of the law.
Additionally, while these bills prohibit third-party age-verification companies from storing or keeping information, they have no prohibitions on state governments, credit bureaus, employers, banks or other databases which supply the information from keeping, using or selling it.
As a result we have watched as adult consumers have instead flocked to non-compliant sites overseas — often pirate sites, unlikely to ever respond to a state lawsuit — and social media sites like Twitter, Reddit and 4chan which may not meet the 33% standard, but host large volumes of adult content. Rather than protect minors, these bills encourage the growth of these illegal sites, and the presence of adult content on non-adult platforms where minors are most likely to stumble upon it.
Oakland Privacy submits:
Some Internet porn sites can be classified as professional businesses. Certainly, an outfit like PornHub likely hires web security professionals and can accept personal information securely. But to extrapolate that assurance to every site on the Internet selling dirty pictures is a reach.
Porn sites have long been known as a virulent vector for malware and computer viruses and guides to porn literally warn people that porn sites can steal their personal information. But problems can occur even when the sites themselves are not malicious with the insecure transmission of personal information - old, sloppy or missing security protocols attract skilled hackers for relatively simple phishing exploits.
Let’s take a hypothetical 15 year old boy who is full of hormones but probably about a year away from being able to actually score a date. Porn is pretty much a moth to a flame. While it may once have been possible to access a pay porn site with something as simple and potentially anomymous as a Paypal or Venmo account, the passage of a law like Assembly Bill 3080 requires our protagonist to steal his father’s driver license or perhaps get a fake ID made. If he takes option A, then he is conveying his address, an image for facial recognition, a drivers license number and a date of birth, which is more than enough for an unethical site operator or a hacker who phishes the upload or sets a “click here for the really hot stuff” honeytrap, to take out credit cards in Dad’s name, ruin the family’s credit and cause great hardship.
The question becomes what in this scenario is the most harmful and the bigger catastrophe? Seeing some porn or feeling guilty because your desires caused your family to experience financial insecurity and harm that is difficult and complicated to remedy? It is likely that the guilt and trauma of the second stays with the young man for the rest of his life. Similarly, an adult of legal age who is victimized while age-verifying for content will be very angry if the financial consequences are severe.
REGISTERED SUPPORT / OPPOSITION:
Support
California Family Council (co-sponsor)
Family Policy Alliance (co-sponsor)
The Age Verification Providers Association (co-sponsor)
California Baptist for Biblical Values
California Catholic Conference
Church State Council
Concerned Women for America
Exodus Cry
Interfaith Statewide Coalition
Magdalene Hope, INC.
My Friend's House Assembly of God Church
Pacific Justice Institute - Center for Public Policy
Real Impact Oceanside
8 Individuals
Opposition
Electronic Frontier Foundation
Foundation for Individual Rights and Expression (FIRE)
Free Speech Coalition
Chamber of Progress
Oakland Privacy
Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334
Date of Hearing: April 30, 2024
ASSEMBLY COMMITTEE ON JUDICIARY
Ash Kalra, Chair
ABPCA Bill Id:AB 3080
Author:(Alanis) – As Amended Ver:April 18, 2024
As Proposed to be Amended
SUBJECT: The Parent’s Accountability and Child Protection Act
KEY ISSUE: should THE PARENT’S ACCOUNTABILITY AND CHILD PROTECTION ACT BE EXPANDED TO REQUIRE INTERNET PORNOGRAPHIC WEBSITES TO CONDUCT REASONABLE AGE VERIFICATION STEPS TO ENSURE USERS ARE AT LEAST 18 WHEN ACCESSING THEIR CONTENT?
SYNOPSIS
Enacted in 2019, AB 2511 (Chau, Chap. 872, Stats. 2018) established the Parent’s Accountability and Child Protection Act (PACPA). As detailed in the legislative history, the purpose of the statute was to protect children by ensuring they are unable to buy items they are not legally allowed to purchase. Under the existing statute, businesses in California that make certain products available that are illegal for purchase by a minor must take “reasonable steps” to ensure the purchaser is of legal age prior to purchase or delivery. This bill expands PACPA to also capture pornography websites, and as such would require the sites, as defined, to engage in reasonable age verification to ensure intending users are of legal age before accessing the website’s content.
This bill is supported by a number of faith-based organizations, including the California Catholic Conference, California Baptist for Biblical Values, and Interfaith Statewide Coalition. It is also supported by the Concerned Women for America Legislative Action Committee, Exodus Cry, Pacific Justice Institute, and the Age Verification Providers Association. It is opposed by the Electronic Frontier Foundation (EFF), the Free Speech Coalition, the Chamber of Progress, Foundation for Individual Rights and Expression (FIRE), and Oakland Privacy. A number of organizations opposed a previous version of the measure and have not updated their position since the bill was amended. This bill was previously heard by the Assembly Committee on Privacy and Consumer Protection which voted to approve the bill on a vote of 10 – 0.
SUMMARY: Expands the Parent’s Accountability and Child Protection Act to include pornographic internet websites. Specifically, this bill:
- Defines the following for the purposes of this bill:
- “Pornographic internet website” means an internet website on which the owner of the internet website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the internet website;
- “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Requires a person or business that conducts business in California and seeks to make a pornographic internet website available to take reasonable steps to ensure the user is of a legal age at the time of access, including, but not limited to, verifying the age of the purchaser.
- Specifies that reasonable steps for the purpose of 2) include, but are not limited to, any of the following:
- Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, specified provisions of the Civil Code and Business and Professions Code;
- Requiring the user to use a nonprepaid credit card or debit card for online access;
- Implementing a system that enables only individuals with accounts designated as adult accounts to access the internet website.
EXISTING LAW:
- Requires sellers of products or services that are illegal to sell to minors to take reasonable steps to ensure that the purchaser is of legal age at the time of the purchase or delivery, including but not limited to verifying the age of the purchaser. (Civil Code Section 1798.99.1 (a). Unless otherwise specified all further statutory references are to the Civil Code.)
- Provides that reasonable steps include:
- The provision of a government-issued identification, subject to all laws governing retention, use, and disclosure of personally identifiable information,
- Requiring the purchaser to use a nonprepaid credit card for an online purchase, or
- Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the prohibited products. (Section 1798.99.1 (a)(2).)
- Prohibits a person or business subject to 1) from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age for any purpose other than as required by law. (Section 1798.99.1 (a)(6).)
- Subjects violators of 1) to a civil penalty of up to $7500 in actions brought by public prosecutors. (Section 1798.99.1 (d).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: Enacted in 2019, AB 2511 (Chau, Chap. 872, Stats. 2018) established the Parent’s Accountability and Child Protection Act (PACPA). As detailed in the legislative history, the purpose of the statute was to protect children by ensuring they are unable to buy items they are not legally allowed to purchase. Under the existing statute, businesses in California that make certain products available that are illegal for purchase by a minor must take “reasonable steps” to ensure the purchaser is of legal age prior to purchase or delivery, including but not limited to, verifying the purchaser’s age. PACPA further authorizes public prosecutors to enforce against violations by bringing a civil claim against a business in violation of the statute’s requirement and collecting civil penalties of up to $7,500.
According to the author: Existing state and federal laws regulate the availability of pornography to minors. Federal law makes it a crime to distribute “obscene material” to someone under the age of 16. (18 USCS 1470.) The existing Parent’s Accountability and Child Protection Act (PACPA) already imposes age verification requirements on sellers of a variety of products such as aerosol containers, body branding products, certain dietary products, and firearms.
This bill expands PACPA to capture pornography websites. The bill defines “pornographic internet websites” as a website on which the owner, for commercial gain, knowingly publishes sexually explicit content that annually exceeds one-third of the website’s content. It further defines “sexually explicit content” to mean visual imagery of an individual or individuals engaging in specified sexual acts that, taken as a whole, lack serious literary, artistic, political, or scientific value.
Pursuant to the amendment to PACPA proposed by this measure, porn websites, as defined, would be legally obligated to engage in “reasonable steps” to ensure their users are of legal age. As with the existing statutory structure, the “reasonable steps” are not specifically assigned but rather “include, but are not limited to” a number of options such as requiring submission of a government ID, requiring the use of a nonprepapid credit card for an online purchase, or implementing a system that enables only individuals with accounts designated as adult accounts to access the website. The only requirement imposed by the bill is that the website take reasonable steps. What those steps ultimately look like appears to be left to the websites themselves to determine.
A number of opponents contend that the bill would require websites to verify the identity and age of all users. However, it seems that there is a fundamental distinction to be made here – the bill does not require websites to verify the identity of a user, merely to take reasonable steps to ensure the user is of legal age. While folks may disagree about what methods constitute “reasonable steps,” it is important to note that the requirement is only as to an age verification and does not necessarily require collection of personally identifying information.
First Amendment concerns. Any legislation proposing to limit access to specific content raises a potential First Amendment concern. The First Amendment of the United States Constitution provides that, “Congress shall make no law abridging the freedom of speech, or of the press.” [Emphasis added.] As applied to the states through the Fourteenth Amendment, and as interpreted by the courts, the First Amendment prohibits any law or policy, at any level of government, from abridging freedom of speech. Legislation seeking to regulate speech can generally be distinguished as either content-based or content-neutral. Content-based laws, or laws that target a particular type of speech, must meet a strict scrutiny standard and must therefore be the least restrictive means to achieve a compelling government purpose in order to withstand legal challenge. Content neutral laws, on the other hand, or laws which serve a purpose unrelated to the speech itself, need only pass intermediate scrutiny. Under this standard, the law “need not be the least restrictive or least intrusive means of serving the government’s interests,” but “may not regulate expression in a manner that a substantial portion of the burden on speech does not serve to advance its goals.”
Supreme Court jurisprudence has identified various categories of speech and determined how much each is protected by the First Amendment. These categories can first be broken down into two primary categories – protected or unprotected. Protected speech benefits from the full shield of the First Amendment and cannot be regulated by the government unless the regulation is narrowly tailored to meet a compelling government interest. Unprotected speech is speech that has been found to be “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,” and thus may be subject to government regulation. (R.A.V. v. St. Paul (1992) 505 U.S. 377, 383.) Unprotected speech can be broken down further into various categories including: true threats; obscenity; defamation; and incitement to imminent lawless action. Obscenity is defined through the following three-pronged test referred to as the Miller test. (Miller v. California, 413 U.S. 15 (1972).) Briefly, the Miller test asks 1) whether the average person, applying contemporary community standards, would find that the work taken as a whole appears to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Pornography, by its nature alone, is not necessarily “obscenity.” Therefore, while some pornographic material may rise to the level of obscenity and therefore fall outside the scope of First Amendment protections, not all of it does. Pornographic content that is not obscene enjoys First Amendment protections and any restriction on such content must survive strict scrutiny. (Sable Communications of Cal. v. FCC (1989) 492 US 115, U.S. v. Playboy Entertainment Group (2000) 529 U.S. 803.)
The number of federal and state laws regulating minors’ access to pornography reflects the significant government interest in protecting children from potentially harmful and inappropriate content. Many have argued that access to this conduct at too young of an age causes significant harm to minors, including poor mental health and increased levels of sexual violence. (Protection of children from the harmful impacts of pornography, UNICEF available at: https://www.unicef.org/harmful-content-online.) Moreover, a number of Supreme Court decisions have likewise affirmed the government’s compelling interest in protecting minors from inappropriate sexual content. (See Ginsberg v. New York (1968) 390 U.S. 629, FCC v. Pacifica Found (1978) 438 U.S. 726.) Therefore, if challenged it seems likely the state would be able to adequately demonstrate a compelling government interest.
The remaining question would then be whether this statute is narrowly tailored, and whether there is a less restrictive alternative. A couple points lend themselves to supporting an affirmative answer on this point. First, the bill does not prohibit the distribution of pornography, nor does it seem to impose stringent hurdles to accessibility. Instead, it merely requires a provider of the content to “take reasonable steps to ensure” the individual accessing the content is an adult. The reasonable steps can be submission of a government identification card, requiring the user to use a nonprepaid credit card or debit card, or only authorizing adult accounts. The only method that is expressly prohibited is obtaining consent from the minor. Otherwise, it appears as though websites are free to impose whichever measure they consider “reasonable” to ensure that their users are of legal age. Arguably, by granting websites the latitude to identify the most appropriate way to engage in the age verification this bill avoids unduly burdening these platforms with unwieldy regulations.
A number of the opponents point to Supreme Court precedent set by United States v. Playboy Entertainment Group, in which the Supreme Court answered whether a provision of the federal Telecommunications Act violated Playboy Entertainment Group’s First Amendment rights. The challenged law required cable television operators that provided channels “primarily dedicated to sexually-explicit programming” to either “fully scramble or otherwise fully block” those channels or limit their transmission during specified hours. The majority of cable providers opted to comply with the law by blocking those channels during specified hours, resulting in a widespread elimination of sexually explicit programing during those timeframes. Playboy challenged the requirement as “unnecessarily restrictive content-based legislation violative of the First Amendment.” (United States v. Playboy Entertainment Group (2000) 529 U.S. 803, p. 807.) In its decision, the Court sided with Playboy, holding that “[w]hen a plausible, less restrictive alternative is offered to a content-based restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals. The Government has not met that burden here.” (Id. at p. 816.)
The current measure appears to be distinguishable from the statute at issue in Playboy on a singularly important point – this bill does not prescribe the manner in which platforms must verify a user’s age. As discussed, the bill merely requires a platform to engage in “reasonable steps” to ensure that minors are not accessing their content.
Opponents also rely on the Supreme Court’s decision in Reno v. ACLU to support their contention that this bill fails to comply with the First Amendment. In Reno v. ACLU, the American Civil Liberties Union (ACLU) challenged two provisions of the Communications Decency Act of 1996 which criminalized the “knowing transmission of obscene or indecent messages to any recipient under 18 years of age […] by means of a telecommunications device,” as well as the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” (Reno v. ACLU (1997) 521 U.S. 844, 859.)
In this case the Court again sided with the challengers on numerous grounds including that, “the CDA is a criminal statute. […] The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” (Id. at p. 872) Further, the Court reasoned “[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” (Id. at p. 899) Further, they wrote: “[i]t is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. […] But that interest does not justify an unnecessarily broad suppression of speech addressed to adults.” (Id. at p. 900) Finally, “[t]he breadth of the CDA’s coverage is wholly unprecedented. Unlike regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent materials or displaying them on their own computers in the presence of minors. The general, undefined terms of ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value.” (Id. at p. 878).
As with Playboy, it seems that the Court’s reasoning in Reno v. ACLU may not apply to this bill. First, the bill does not impose criminal liability. Instead, it amends an existing statute that could raise civil liability in a claim brought by a public prosecutor. Second, the scope of the prohibition implemented by the CDA was seemingly much more expansive than that imposed by this bill. The CDA prohibited any knowing transmission of obscene or indecent messages to a minor, as well as the sending or displaying of such content in a manner that is available to a minor. The CDA’s prohibition, as reasoned by the court, captured non-commercial and educational sites, as well as commercial platforms, thereby broadly imposing unnecessary and burdensome requirements. This bill does not appear to impose such sweeping prohibitions. Instead, the requirement would apply only to “pornographic internet websites” defined as a website on which the owner, for commercial gain, knowingly publishes sexually explicit content that exceeds one-third of the content published on the website in a given year. The bill also defines “sexually explicit material” in a manner that mirrors existing law and exempts content with any “serious literary, artistic, political, or scientific value.” Theoretically, these definitions function in tandem to only capture platforms providing access to pornographic materials only, rather than also capturing platforms that provide “nonpornographic material with serious educational or other value.” Therefore this bill appears to present a much more narrowly tailored requirement than the statute at issue in Reno v. ACLU.
While no committee analysis can guarantee a bill’s success or failure when faced with a First Amendment challenge, it appears that this proposed measure may be sufficiently distinct from the statutes at issue in U.S. v. Playboy Entertainment Group and Reno v. ACLU to withstand legal review.
Proposed amendments. A number of opponents contend that the bill would risk unduly infringing on individuals’ privacy in order to access constitutionally protected content. For example, the Electronic Frontier Foundation (EFF) writes:
[AB 3080] would require businesses to collect information to verify the ages of anyone visiting a website that is deemed to offer ‘sexually explicit material.’ Age verification systems are surveillance systems. Requiring age verification, which relies on identity verification, is the wrong approach to protecting young people online. […] It is a significant privacy violation to require all people to submit either their official government-issued identification credentials, or to delve into their transactional history […] to attempt to determine their age, particularly if that person is an adult for whom there are no restrictions to view such material. Given the stigma around sexually explicit material online, if a bank or other records-holder was told why a site wanted to verify information, it could also have unfair and serious consequences for an adult viewing these sites.
As previously discussed, submission of government-issued identification is only one potential method a website could choose to adopt in order to verify a user’s age. If the website determines, as EFF contends, that doing so would constitute an unfair infringement on their users’ privacy, they could identify a different approach. More than likely, websites may consider the burden of the age-verification requirements on their potential users and be incentivized to only implement those which do not drive users away from their platforms.
Nonetheless, the risk of stigmatizing lawful behavior as EFF identifies is an understandable concern. In order to address this issue, the author proposes to amend the bill to require any of the reasonable steps identified by the website to protect the identity of the intending user. The amendment would read as follows:
Civil Code Section 1798.99.1
(a)(5)(B) A person or business required to comply with paragraph (2) shall ensure that the reasonable step is designed to anonymize a user’s identity and is incapable of being used to create a record of the user’s online activity.
Additionally, the author propose various technical amendments as follows:
Civil Code Section 1798.99.1. (a) (1) A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), or to make available a product as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2) A person or business that conducts business in California, and that seeks to make available a product in California that is illegal under state law to make available to a minor, as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure the user is of legal age at the time of access, including, but not limited to, verifying the age of the user.
[…]
(A) Reasonable steps as used in paragraph (1) (2) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
[…]
(9) For purposes of this subdivision, “user” means a person who intends to access a product in California that is illegal under state law to make available to a minor, as described in subdivision (d).
ARGUMENTS IN SUPPORT: This bill is supported by a number of faith-based organizations including the California Catholic Conference, California Baptist for Biblical Values, and Interfaith Statewide Coalition. It is also supported by the Concerned Women for America Legislative Action Committee, Exodus Cry, Pacific Justice Institute, and the Age Verification Providers Association.
The Family Policy Alliance submits:
With the rise of technology, minors currently have nearly unlimited access to adult websites, many of which contain inappropriate and pornographic material. In fact, studies show that by the age of 17, about 75% of adolescents have been exposed to pornography. This statistic is quite alarming and is made possible by the fact that many of these websites are accessible without parental involvement through age verification. Parents have the right and the ultimate responsibility of directing the upbringing of their children. As a result, age verification requirements for adult websites are necessary to help prevent adolescents from accessing inappropriate and pornographic material. These bills help put parents back in their rightful place of controlling whether and how their children engage with dangerous pornographic material online.
Research has proven that pornography harms children. In fact, studies show that 88.2% of pornographic videos depict sexual violence, while 48.7% of these same videos include some kind of verbal abuse. Furthermore, studies show that 53% of male adolescents and 39% of female adolescents actually believe the lie that pornography is an accurate portrayal of sex. Thus, adolescents are learning about sexuality from a perspective which portrays sex as physical abuse, instead of receiving age-appropriate sex education from a parent or guardian.
In addition, studies reveal that out of those individuals who have been exposed to pornography, 58% accessed the material unintentionally.4 As a result, adolescents are becoming addicted to pornography through interaction with certain websites that parental involvement could have prevented. Therefore, the age verification requirements in A.B. 3080 are necessary to prevent minors from encountering inappropriate and pornographic material and to empower parents to protect their kids from such exposure. Finally, right now the average age of first exposure to pornography is between the ages of 7 and 13; therefore, it is essential for legislation to restore parental rights to protect their children from pornography.
Not only does pornography harm children’s mental well-being – there is also a strong correlation between pornography, human trafficking, and sexual abuse. In fact, research reveals that it is impossible to determine whether pornographic videos portray consensual sex, as many adult sites contain explicit videos and images of adults and minors, who have not consented to filming such content. Sex trafficking is the supply side of the pornography industry. Therefore, age verification requirements are crucial to preventing such abuse by limiting the access of pornography and explicit material to minors, thereby curbing the demand for that supply.
Some have argued against these measures, claiming that the government should stay out of matters relating to children’s online access and that the decision ultimately belongs to parents. We wholeheartedly affirm that decisions pertaining to a child’s time online belong to parents. This is why we so strongly support this bill. The age verification requirements will place these choices and others back into the hands of parents across California.
California is not the first state to propose a bill like this. Seven states passed similar legislation last year, and another eight have passed them this year. Most of these bills have been bipartisan efforts, including some where the legislative houses voted unanimously to pass the bill. Most of these bills have withstood judicial scrutiny: for example, the 5th Circuit Court recently upheld one of these bills in a landmark decision. The Court made clear that states have a compelling interest in protecting children from internet pornography, and that bills like A.B. 3080 do not violate the First Amendment.
Parental rights are the backbone of the family, and one of parents’ rights is to protect their child’s innocence. A.B. 3080 restores this right by reestablishing the role of parents in their children’s consumption of online material.
ARGUMENTS IN OPPOSITION: This bill is opposed by the Electronic Frontier Foundation (EFF), the Free Speech Coalition, the Chamber of Progress, the Foundation for Individual Rights and Expression (FIRE), and Oakland Privacy. A number of organizations, including Chamber of Progress, the Foundation for Individual Rights and Expression (FIRE), Oakland Privacy, and the Woodhull Freedom Foundation submitted opposition to a previous version of this measure but have not submitted updated letters relating to the version currently in print, thus it is unclear whether they maintain their opposition. The Free Speech Coalition writes:
While we applaud the bill’s sponsor, Asm. Alanis, for his willingness to amend the legislation in response to the Committee on Privacy and Consumer Protection Committee analysis, the new language does not resolve the fundamental constitutional issues or change the fact that the policy approach is ineffective.
The adult industry whole-heartedly supports efforts to keep minors from material that is age-inappropriate or harmful. Aside from the moral and ethical issues involved with minors accessing our content, it is a financial drain on our industry. Were the promises of age verification companies to prevent minors from accessing our sites while not significantly impacting the ability of legal adults to access our content, we would eagerly embrace their technology. Unfortunately, that is not the case and AB-3080 continues to present significant practical, technical and legal problems that render its ability to protect children limited while creating dangerous privacy risks for adults, and violating the First Amendment rights of both consumers and producers.
[…]
Age-Verification Laws Have Pushed Consumers to Unsafe Websites
Six laws mandating age-verification on adult content websites took effect in 2023. We’ve collected information on how they impact websites and users in reality and the results are abysmal. When major adult websites attempted to comply with the regulations, they found that the vast majority of adult consumers — as many as 97% — refuse to submit their ID or otherwise engage in other age-verification protocols.
Submitting a government-issued ID online to view sensitive, First Amendment-protected content is simply not the same as flashing an ID at a checkout counter to purchase fireworks. The process is expensive for websites and complicated for consumers, most of whom fear the real risks of surveillance, identity theft and exposure of their most private viewing behaviors. Proponents of these laws have promised that this information will never be shared, but over 353 million Americans were victims of data compromises in 2023, including data breaches, leakage, and exposure. In Utah and Louisiana, we have had reports of phishing scams, identity theft and extortion as a result of the law.
Additionally, while these bills prohibit third-party age-verification companies from storing or keeping information, they have no prohibitions on state governments, credit bureaus, employers, banks or other databases which supply the information from keeping, using or selling it.
As a result we have watched as adult consumers have instead flocked to non-compliant sites overseas — often pirate sites, unlikely to ever respond to a state lawsuit — and social media sites like Twitter, Reddit and 4chan which may not meet the 33% standard, but host large volumes of adult content. Rather than protect minors, these bills encourage the growth of these illegal sites, and the presence of adult content on non-adult platforms where minors are most likely to stumble upon it.
Oakland Privacy submits:
Some Internet porn sites can be classified as professional businesses. Certainly, an outfit like PornHub likely hires web security professionals and can accept personal information securely. But to extrapolate that assurance to every site on the Internet selling dirty pictures is a reach.
Porn sites have long been known as a virulent vector for malware and computer viruses and guides to porn literally warn people that porn sites can steal their personal information. But problems can occur even when the sites themselves are not malicious with the insecure transmission of personal information - old, sloppy or missing security protocols attract skilled hackers for relatively simple phishing exploits.
Let’s take a hypothetical 15 year old boy who is full of hormones but probably about a year away from being able to actually score a date. Porn is pretty much a moth to a flame. While it may once have been possible to access a pay porn site with something as simple and potentially anomymous as a Paypal or Venmo account, the passage of a law like Assembly Bill 3080 requires our protagonist to steal his father’s driver license or perhaps get a fake ID made. If he takes option A, then he is conveying his address, an image for facial recognition, a drivers license number and a date of birth, which is more than enough for an unethical site operator or a hacker who phishes the upload or sets a “click here for the really hot stuff” honeytrap, to take out credit cards in Dad’s name, ruin the family’s credit and cause great hardship.
The question becomes what in this scenario is the most harmful and the bigger catastrophe? Seeing some porn or feeling guilty because your desires caused your family to experience financial insecurity and harm that is difficult and complicated to remedy? It is likely that the guilt and trauma of the second stays with the young man for the rest of his life. Similarly, an adult of legal age who is victimized while age-verifying for content will be very angry if the financial consequences are severe.
REGISTERED SUPPORT / OPPOSITION:
Support
California Baptist for Biblical Values
California Catholic Conference
California Family Council
Church State Council
Concerned Women for America
Exodus Cry
Family Policy Alliance
Interfaith Statewide Coalition
Magdalene Hope, INC.
My Friend's House Assembly of God Church
Pacific Justice Institute - Center for Public Policy
Real Impact Oceanside
The Age Verification Providers Association
8 Individuals
Opposition
Electronic Frontier Foundation
Foundation for Individual Rights and Expression (FIRE)
Free Speech Coalition
Chamber of Progress
Oakland Privacy
Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334
Date of Hearing: April 16, 2024
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Rebecca Bauer-Kahan, Chair
ABPCA Bill Id:AB 3080 (
Author:Alanis) – As Amended Ver:March 21, 2024
AS PROPOSED TO BE AMENDED
SUBJECT: Age verification: obscene and indecent material
SYNOPSIS
The proposition behind this author-sponsored bill is straightforward and intuitive: just as children are not allowed to buy pornography in a brick-and-mortar store, so too should they be prevented from accessing it online. But the bill’s means of doing so—a requirement, enforceable by a private right of action, that websites trafficking in “materials harmful to children” use age-verification technology—poses logistical and legal challenges, arguably placing at odds this Committee’s dual priorities of consumer protection and privacy.
A number of other states—Arkansas, Mississippi, Montana, North Carolina, Texas, Utah, Virginia, and most recently Kentucky—have adopted similar age verification requirements aimed at pornographic websites, based on model legislation from the Center For Renewing America, a socially conservative think tank. These efforts have generated concerns over privacy, internet freedom, and free speech. In Arizona, Governor Katie Hobbs recently vetoed such a bill, stating that any solution should “work within the bounds of the First Amendment, which this bill does not.” Meanwhile, major pornography sites, such as Pornhub, have blocked users in these states from visiting their sites, leading to spikes in searches for virtual private networks, which enable users to mask their geographic location.
Supporters include several organizations, such as California Family Council, Family Policy Alliance, and the Institute for Family Studies, who point to the many harms that online pornography can inflict on minors, including how it warps perceptions of what healthy sex looks like—leading to sexual violence against young women. They also point to correlations between the rise of online consumption of pornography and the increase in sex trafficking, child pornography, and sexual abuse.
Opponents include privacy and free speech advocates, organizations that promote reproductive freedom and the interests of LGBTQ+ individuals, and the adult content industry. They echo the larger debate about these legislative efforts, question the efficacy of age-verification technology, and raise alarm about its privacy tradeoffs. Additionally, they argue that the bill, through vaguely defined terms, reaches not just legal content but also educational resources and communal spaces that are essential for vulnerable communities.
Committee amendments overhaul the bill by deleting its contents and situating a more narrowly-casted version in an existing age-verification scheme applicable to certain products and services that are illegal to sell to minors.
If the bill passes this Committee, it will next be heard by the Judiciary Committee.
SUMMARY: Requires a covered platform that publishes or distributes “material harmful to minors”—defined as material that is indecent, obscene, or child pornography—to perform reasonable age verification methods and prevent access by minors to the materials. Subjects violations to a private right of action by any individual. Specifically, this bill:
- Requires a covered platform that publishes or distributes material harmful to minors to perform reasonable age verification methods to verify the age of each individual attempting to access the material and to prevent access by minors to the material.
- Provides that reasonable age verification methods include specified government-issued identification, a credit or debit card, bank account information, and any other means or method that reliably and accurately can determine whether the user is a minor.
- Prohibits covered platforms from retaining any identifying information of the individual after access has been granted to the material.
- Provides that various types of agreements that are contrary to the bill’s provisions are void and unenforceable.
- Provides that enforcement of the bill is limited to private right of actions. Such actions may be brought by the parent or legal guardian of a minor for a violation of the bill, or by any individual after access to material harmful to minors has been granted to the individual.
- Contains the following definitions:
- “Covered platform” means an entity for which all of the following are true:
- The entity makes available an internet website;
- It is in the regular course of the trade or business of the entity to create, host, or make available material harmful to minors; and
- The material harmful to minors is provided by the entity, user, or other information content provider with the objective of earning a profit.
- “Material harmful to minors” means any visual media that is indecent, obscene, or child pornography.
- “Indecent” means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with referenced Federal Communications Commission regulations, meets any of the following conditions:
- Would be found by the average person, applying contemporary statewide standards, to be generally harmful to minors;
- Depicts, describes, exposes, or presents sexual conduct in a patently offensive way; or
- Taken as a whole, lacks serious literary, artistic, or scientific value for the purpose of educating minors.
- “Obscene” means any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that, consistent with Miller v. California (1973) 413 U.S. 15, meets any of the following conditions:
- Would be found by the average person, applying contemporary statewide standards, to appeal to the prurient interest;
- Depicts, describes, exposes, or presents sexual conduct in a patently offensive way; or
- Taken as a whole, lacks serious literary, artistic, or scientific value.
- “Covered platform” means an entity for which all of the following are true:
- Specifies that it does not apply to the extent it violates federal law and various provisions of the federal constitution. Contains a severability clause.
EXISTING LAW:
- Requires sellers of products or services that are illegal to sell to minors to take reasonable steps to ensure that the purchaser is of legal age at the time of the purchase or delivery, including but not limited to verifying the age of the purchaser. (Civ. Code § 1798.99.1(a).)
- Provides that reasonable steps include:
- The provision of a government-issued identification, subject to all laws governing retention, use, and disclosure of personally identifiable information,
- Requiring the purchaser to use a nonprepaid credit card for an online purchase, or
- Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the prohibited products. (Civ. Code § 1798.99.1(a)(2).)
- Prohibits a person or business subject to 1) from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age for any purpose other than as required by law. (Civ. Code § 1798.99.1(a)(6).)
- Subjects violators of 1) to a civil penalty of up to $7500 in actions brought by public prosecutors. (Civ. Code § 1798.99.1(d).)
FISCAL EFFECT: As currently in print, this bill is keyed nonfiscal.
COMMENTS:
1) Author’s statement. The author writes:
Over the past decade, a remarkable shift has occurred: today’s youth have unlimited access to pornographic content around the clock. Smartphones have rendered explicit sexual imagery pervasive, discreet, and easily accessible. Children often encounter this material without seeking it, with social media frequently serving as the gateway to pornographic websites. Many of the filters parents use to protect their children from such content have workarounds and glitches.
Pornography adversely affects the developing brains of children, hindering their growth. Studies indicate that it impacts users similarly to a drug, leading to addiction, altering neural connections, and diminishing the prefrontal cortex’s ability to regulate executive functions and control impulses. Furthermore, it has degraded, and in numerous instances, undermined, the dynamics between genders. Some studies have even shown correlations between the rise of consumption of porn and the increase in sex trafficking, child pornography, and sexual abuse. California has long been on the forefront of legislation that aims to protect children from abuse and exploitation, yet, not restricting access to pornographic content leaves California minors at risk of psychological damage that could last a lifetime.
Just like retail and restaurant establishments are required to make a reasonable effort to verify the age of customers buying alcohol to prevent the negative effects on minors, AB 3080 prevents mental, emotional, physical, and developmental harm to California minors by requiring websites containing obscene and indecent material to adopt and operate reasonable age verification measures to ensure that users accessing the platform are not minors.
2) Online pornography’s harms to minors. Supporters and opponents alike agree that minors should be protected from content that is not age-appropriate. The harms of online pornography to minors are well documented. Common Sense Media reports “that the majority of teen respondents age 13–17 have watched pornography online—and some have seen it by age 10 or younger. And while some have discovered it accidentally, a significant number of teens said they were viewing online pornography intentionally on a regular basis.”[1] The report notes that pornography can be part of a healthy exploration of sex, particularly for LGBTQ+ teens. But too often “exposure to pornography will influence unrealistic or even dangerous representations of what healthy sexual relationships look like.”[2] In particular, 52% “had seen pornography depicting what appears to be rape, choking, or someone in pain.”[3]
A recent New York Times article entitled “The Troubling Trend in Teen Sex” described a study finding that nearly two-thirds of the students at a major Midwestern university had experienced “rough sex,” particularly sexual strangulation, which was rarely consensual. Over the past four years, “[t]he rate of those women who said they were between the ages of 12 and 17 the first time that happened shot up to 40 percent from one in four.” The article connected this trend directly to the availability of free online pornography:
Sexual strangulation, nearly always of women in heterosexual pornography, has long been a staple on free sites, those default sources of sex ed for teens. As with anything else, repeat exposure can render the once appalling appealing. It’s not uncommon for behaviors to be normalized in porn, move within a few years to mainstream media, then, in what may become a feedback loop, be adopted in the bedroom or the dorm room.[4]
Writing in support, the California Catholic Conference writes:
Minors exposed to pornography are more likely to experience depression, anxiety, loneliness, worse academic performance, and poorer overall mental health. Consuming pornography can also damage development of children’s prefrontal cortex, the problem solving center of the brain, leading to impulsivity, irrational behavior, executive dysfunction, and even addiction.
Minors often feel pressure to imitate what they view in porn, reinforcing gender stereotypes, impossible standards of body image, and unhealthy expectations of relationships. Pornography messages to children that partners are objects for use, and that the sexism, racism, physical and sexual violence depicted are acceptable forms of behavior. As a result, adolescent pornography consumption is associated with more sexist attitudes, greater acceptance of sexual coercion, increased sexual aggression, and perpetration of sexual violence.
3) Related efforts. A number of other states—Arkansas, Mississippi, Montana, North Carolina, Texas, Utah, Virginia, and most recently Kentucky—have adopted age-verification requirements aimed at pornographic websites, based on model legislation from the Center For Renewing America, a socially conservative think tank.[5] These efforts have generated concerns over privacy, internet freedom, and free speech. In Arizona, Governor Katie Hobbs recently vetoed such a bill, stating that any solution should “work within the bounds of the First Amendment, which this bill does not.”[6] Meanwhile, major pornography sites, such as Pornhub, have blocked users in these states from visiting their sites, leading to spikes in searches for virtual private networks, which enable users to mask their geographic location.[7]
Here in California, AB 1501 (Hoover, 2023) would have required a commercial entity that knowingly and intentionally publishes or distributes sexually explicit material on the internet from a sexually explicit website to use an age-verification method that prevents minors from accessing sexually explicit material. The bill was referred to this committee but was not heard.
4) Age-verification concerns. This bill requires a covered platform that publishes or distributes “material harmful to minors” to perform reasonable age-verification methods and prevent access by minors to the materials. The bill prohibits covered platforms from retaining any identifying information of the individual after access has been granted to the material.
The Age Verification Providers Association, although neutral on the bill, writes to comment about “the ease of use of the wide variety of methods of age verification, and the data minimization designed into these approaches so personally identifiable data need never be retained.” They state that “reasonable age verification methods” include:
Remote electronic identification verification technology (eIDVT) – government issued physical identity documents such as passports or driving licenses are scanned as an image using the user’s mobile phone camera or webcam, or, in some cases where this is included, a computer chip in the document can be read by a smartphone. The user is asked to provide a live selfie image which can then be electronically compared to the image from the ID, and provided the two match, then the age information is recorded and can then be used as the basis of age verification.
[…]
Online banking integration – Some AV providers have reached agreement with banks to allow a customer to log into their online banking and give consent for the bank to confirm their date of birth to the AV provider.
Credit Reports and other transactional databases – A user can give consent for an AV provider to check with Credit Report bureau if the age they are claiming is accurate. Typically, the user will have to give some further reassurance that they are the person whose credit report they are claiming belongs to them; for example, knowing about some recent payments they have made. Other authoritative databases can play a similar role, with their own approaches to authentication of the user claiming the age data relates to them.
Facial age estimation – through machine learning, algorithms can now predict to within 1 ½ years mean average error the age of a user from a selfie image. The National Institute of Standards and Technology (NIST) have been testing competing solutions from providers and are expected to publish their findings this week, prior to the Committee’s hearing. While some people have expressed concerns about adults sharing a selfie image for this purposes, it should be noted that the estimation can be made locally on the user’s own phone or PC, so the image need never be shared with a third party. Given there is a margin for error, typically this would be made available as an option for users who are several years over 18 – for example, 23 – when it is statistically proven that the vast majority of minors under 18 would not be estimated to look at least 23. Users who are closer to 18 will need to use an alternative mechanism.
[…]
Reusable digital identity – Digital ID is becoming increasingly available. Several US states issue mobile drivers licenses, for example. Users can give consent for the age to be selectively shared with AV providers, typically using an approach called Verifiable Credentials.
Opponents argue that there are other more privacy-protective methods of protecting children from prurient online content. The Free Speech Coalition, which advocates for the adult industry, argues a more effective solution with fewer tradeoffs can be found in content-filters installed on personal computers:
Such filters are regularly used by our schools and workplaces, and adult businesses already voluntarily register our sites with them to make sure our sites are effectively blocked. In fact, we pioneered the protocols that allow filters to easily do so.
Such filters are already available on phones, tablets, laptops and home WiFi networks. They are easy to set up and, for the most part, free to use. They put power in the hands of parents, rather than the government.
More importantly, filters can not be evaded by use of VPN — the virtual private networks that allow users to evade the regulations by accessing the internet through another state or country. Filters can be tailored to remove sites like Twitter and Reddit which allow adult content, but may not reach the threshold required for liability under this bill. Filters can also trigger “safe search” settings on search engines, which prevent adult content or sites from appearing in search results.
A 2022 report by France’s National Commission on Informatics and Liberty (CNIL) “analysed the main types of age verification systems in order to clarify its position on age verification on the Internet, particularly on pornographic sites for which such verification is mandatory. It specifies how such publishers could fulfil their legal obligations. However, CNIL finds that such current systems are circumventable and intrusive, and calls for the implementation of more privacy-friendly models.”[8] A Verge article describing this report states: “CNIL notes that identifying someone’s age with a credit card would be relatively easy since the security infrastructure is already there for online payments. But some adult users — especially those with lower incomes — may not have a card, which would seriously limit their ability to access online services. The same goes for verification methods using government-issued IDs. Children can also snap up a card that’s lying around the house to verify their age.”[9]
In opposition, Electronic Frontier Foundation writes:
Age verification laws don’t just impact young people — it’s necessary to confirm the ages of all website visitors. It is a significant privacy violation to require all people to submit either their official government-issued identification credentials, or to delve into their transactional history—including “bank account information”—to attempt to determine their age, particularly if that person is an adult for whom there are no restrictions to view such material. Given the stigma around sexually explicit material online, if a bank or other records-holder was told why a site wanted to verify information, it could also have unfair and serious consequences for an adult viewing these sites.
Additionally, while an age-verification system would collect far more information than is necessary or reasonable for its state purpose, it is unlikely to keep minors from viewing this material. In 2022, France’s Audiovisual and Digital Communication Regulatory Authority ordered several sites with adult content to implement age verification. Then, France’s National Commission on Informatics and Liberty, CNIL, published a detailed analysis of current age verification methods. It found that no method has the following three important elements: “sufficiently reliable verification, complete coverage of the population, and respect for the protection of individuals' data and privacy and their security.” (Footnote omitted.)
Oakland Privacy, also opposing, adds:
Age-gating pornography sites is compelling unsafe behavior. It is demanding that people relinquish their personal information to shady unaccountable operators who cannot assure customers that they will, or even can, protect it. Moreover, attempts to avoid the age-gating mechanism may drive porn users, old and young, even farther afield to even shadier foreign websites that may defer the age-gating, but are cesspools of viruses, ransomware and theft. If the intent is to keep youth safe, age-gating may well have exactly the opposite effect of what is intended.
5) Concerns with the bill. This bill requires a covered platform that publishes or distributes “material harmful to minors”—defined as material that is indecent, obscene, or child pornography—to perform reasonable age-verification methods and prevent access by minors to the materials. At the outset, it is worth noting that if the bill applies to “indecent” content, it necessarily embraces obscenity and child pornography. The inclusion of the latter, furthermore, is confusing since it seemingly implies child pornography may be viewed by verified adults, which of course is not the intent of the bill.
“Indecent” is broadly defined to mean any image, video, audio recording, audiovideo file, film, written material, document, software, data file, scripting language, computer code, game, virtual reality technology, interactive and noninteractive streaming service, interactive and noninteractive streaming software, and downloadable application that meets any of the following conditions:
- Would be found by the average person, applying contemporary statewide standards, to be generally harmful to minors;
- Depicts, describes, exposes, or presents sexual conduct in a patently offensive way; or
- Taken as a whole, lacks serious literary, artistic, or scientific value for the purpose of educating minors.
Thus, “materials harmful to minors” are, circularly, those found “to be generally harmful to minors” under “statewide standards.” Covered platforms, moreover, are not limited to sites that principally and knowingly traffic in such materials. As such, the bill would apply to a wide range of content and platforms, well afield of the author’s stated focus. Moreover, under the bill, a private right of action may be brought by any individual if the individual is granted access to the website without proper verification, not just parents and guardians of minors who are granted access to such materials. The potential for abuse is evident.
A broad coalition of organizations that advocate on behalf of LGBTQ+ rights and reproductive freedom “strongly oppose[s] the age-verification bills being put forward by state legislatures to prevent access to ‘material harmful to minors’ online. These bills violate internet privacy and freedom and access to legal content, including education and resources through vague and subjective definitions.” In their view, such efforts are “just another strategy in a broader attack on free expression that includes book bans, censorship of reproductive health information, attacks on LGBTQ+ youth, and other violations of our constitutional rights.” They continue:
In our digital age, safeguarding personal information is paramount, yet these bills demand invasive measures such as ID uploads, facial scans, or background checks, leaving individuals rightfully apprehensive about the fate of their browser history, identity documents, and other sensitive data. The potential for cyberattacks looms large, with no ironclad assurances of data security or non-storage provided. The risks inherent in accessing lawful content under such surveillance are immense. Even good actors and governments struggle to secure this type of data, as we’ve seen countless times in recent years. Promises that the information will not be stored or will be secure in transit can in no way be guaranteed, and the risks with accessing that content can be great.
We are deeply troubled by the broad strokes with which these bills paint the notion of “material harmful to minors,” a brush that risks tainting even non-explicit material and could be applied to literature, art, and education. The nebulous definition of “material harmful to minors,” as written in these bills leaves LGBTQ+ literature, sex education materials, and artistic expressions vulnerable to censorship, echoing past instances of suppression in libraries and classrooms nationwide.
Furthermore, these bills fail to recognize the nuanced differences among minors, lumping together content suitable for a seventeen-year-old with that which may be wholly inappropriate for a much younger child. This lack of discernment places educators, creators, and platforms in a precarious position, unsure of what may trigger liability under the law.
The arbitrary threat of enforcement means that these bills, like others passed last year, will have a chilling effect on those who produce or distribute significant amounts of content that deals with sex or sexuality. The cost of defending oneself against a civil lawsuit brought by a parent or caregiver is extremely high, and so is the damage to a website’s reputation. These laws offer no shield against frivolous claims, potentially weaponizing legislation against already marginalized voices and platforms. (Footnotes omitted.)
6) First Amendment concerns. The United States and California Constitutions prohibit abridging, among other fundamental rights, freedom of speech.[10] This bill requires covered platforms that publish or distribute “material harmful to minors”—defined to include materials that are obscene, indecent, or child pornography—to perform reasonable age-verification methods on all individuals attempting to access the material. This broad infringement on accessing specific content implicates the First Amendment’s guarantee of freedom of speech.
“At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”[11] Government cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,”[12] nor regulate speech “because of disapproval of the ideas expressed.”[13] As opponents of the bill note, age verification as a condition of accessing “indecent” or “obscene” online materials may require individuals to, in effect, divulge details about intimate and private matters. The vague scope of the bill could have a significant chilling effect not just on access to the salacious but also to materials that, depending on one’s conception of “statewide standards,” may be indecent or indispensable. Opponents argue that the bill could encompass, for example, content about sexuality, gender, and reproductive choice.
Sexual expression that is indecent but not obscene is protected by the First Amendment.[14] Thus, in Ginsberg v. New York (1968) 390 U.S. 629, the United States Supreme Court held that a New York statute barring the sale of obscene materials to minors under the age of seventeen did not violate the First Amendment. Because “obscenity is not protected expression,” the New York statute could be sustained so long as the Legislature’s judgment that the proscribed materials were harmful to children “was not irrational.”[15]
As opposed to this lenient “rational basis” approach that Ginsberg applied to unprotected speech, protected speech is subject to a more exacting standard of judicial review. Content-based restrictions on protected speech, including sexual speech that is not obscene, are subject to “strict scrutiny” and thus are presumptively unconstitutional, valid only if the government proves they are narrowly tailored to further a compelling interest.[16]
While protecting the psychological well-being of children is a compelling government purpose,[17] courts have generally found that government regulation of adult speech to protect children is not sufficiently tailored to serve this purpose. Thus, Butler v. Michigan (1957) 352 U.S. 380, 383 held that a statute criminalizing the sale, to any person, of materials “tending to the corruption of the morals of youth” was “burn[ing] the house to roast the pig.” Similarly, Sable Communications of Cal. v. FCC (1989) 492 U.S. 115, 126 held unconstitutional a “statute’s denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages.”
As for government regulation of sexual speech on the internet, the United States Supreme Court in Reno v. ACLU (1997) 521 U.S. 844, 849 invalidated provisions of the Communications Decency Act of 1996 that established criminal penalties for the knowing transmission of obscene or indecent material in a manner likely to be accessible to a minor. Under the statute, an affirmative defense was available to “those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code.”[18] Stressing the vagueness and breadth of the statute, the Supreme Court reiterated the principle that the government’s interest in protecting children “does not justify an unnecessarily broad suppression of speech addressed to adults.”[19] The court also relied on the lower court’s findings that there was no effective way to verify a user’s age, it would be prohibitively expensive for the noncommercial—as well as some commercial—entities that the statute embraced, and that user-based software offered a less restrictive alternative.[20]
Congress responded by passing the Child Online Protection Act (COPA), which imposed criminal penalties on operators of websites that knowingly post, for commercial purposes, material that is “harmful to minors,” defined in terms similar to this bill, including that the average person “applying contemporary community standards” would find the objectionable content was designed to appeal or pander to “the prurient interest.”[21] An affirmative defense, again, was available for those who take reasonable measures to prevent minors from accessing the website, including age verification.[22] In Ashcroft v. ACLU (2004) 542 U.S. 656, the United States Supreme Court affirmed the lower court’s ruling that enforcement of the law should be suspended during a pending lawsuit because the statute likely violated the First Amendment. The Court found that COPA was likely unconstitutional because content filters installed on computers by parents were less restrictive and more likely to be effective than age verification.[23]
Earlier this year, however, the Fifth Circuit Court of Appeals departed from these precedents in a case involving a Texas law requiring commercial pornographic websites to verify the age of their users.[24] Instead of applying the “strict scrutiny” test used in the precedents described above, the court concluded that the proper standard was the lenient “rational basis” test, which asks whether a speech restriction is rationally related to the government’s legitimate interest. Applying this test, the court concluded that the age-verification requirement does not violate the First Amendment. In doing so, the court relied not on Reno or Ashcroft but rather on Ginsberg—the 1968 case, described above, that upheld a statute barring children from accessing obscene materials. However, as discussed, Ginsberg applied to obscenity and the Supreme Court has since consistently applied strict scrutiny to content-based regulations that infringe upon adults’ ability to access sexual content.
This bill fits squarely in those precedents. Thus, it would likely be invalidated unless the government could prove it is sufficiently narrowly tailored to serve the compelling interest of protecting children from accessing pornographic materials.
7) Committee amendments. Given the exacting standard the bill must meet, the author has agreed to amend it. The amendments will delete the current language of the bill and instead amend The Parent’s Accountability and Child Protection Act (AB 2511, Chau; Ch. 872, Stats. 2018), which requires sellers of products or services that are illegal to sell to minors to take reasonable steps to ensure that the purchaser is of legal age at the time of the purchase or delivery, including but not limited to verifying the age of the purchaser. Reasonable steps include (1) the provision of a government-issued identification, subject to all laws governing retention, use, and disclosure of personally identifiable information, (2) requiring the purchaser to use a nonprepaid credit card for an online purchase, or (3) implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the prohibited products. The act prohibits a person from retaining, using, or disclosing any information it receives from a purchaser or recipient in an effort to verify age, unless required by law. Violators are liable for a civil penalty of up to $7500 in actions brought by public prosecutors.[25]
The amendments would integrate within that scheme “pornographic websites,” defined as a website on which the owner of the website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the website. Thus, unlike the bill in print, the amended version will apply to websites that deliberately and substantially traffic in pornography. “Sexually explicit” content, in turn, is defined as “visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.” This draws from both the definition of revenge pornography[26] as well as a component of the constitutional test for defining obscenity.[27]
In contrast to the bill in print, this narrower approach significantly enhances the likelihood the bill will survive a constitutional challenge. Despite the unfavorable precedents described above, there may be a few bases for distinguishing the bill, including that it imposes civil rather than criminal penalties and that age-verification methods have advanced in the years since Reno and Ashcroft. Nevertheless, these improvements do not guarantee the bill will pass constitutional muster. As such, the author may wish to continue to seek ways of further narrowing and refining the bill.
The proposed new language of the bill is as follows:
SEC. 1. 1798.99.1.
(a) (1) A person or business that conducts business in California, and that seeks to sell any product or service in or into California that is illegal under state law to sell to a minor, as described in subdivisions (b) and (c), or to make available a product as described in subdivision (d), shall, notwithstanding any general term or condition, take reasonable steps to ensure that the purchaser is of legal age at the time of purchase or delivery, including, but not limited to, verifying the age of the purchaser.
(2) Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (b) include, but are not limited to, any of the following:
(A) Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B) Requiring the purchaser to use a nonprepaid credit card for an online purchase.
(C) Implementing a system that restricts individuals with accounts designated as minor accounts from purchasing the products listed in subdivision (b).
(D) Shipping the product or service to an individual who is of legal age.
(3) Reasonable steps as used in paragraph (1) for the purchase of items described in subdivision (c) include, but are not limited to, any of the following:
(A) Requiring the purchaser or recipient to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B) Shipping the product or service to an individual who is of legal age.
(4) Reasonable steps as used in paragraph (1) for the provision of a product described in subdivision (d) include, but are not limited to, any of the following:
(A) Requiring the user to input, scan, provide, or display a government-issued identification, provided that the person or business complies with all laws governing the retention, use, and disclosure of personally identifiable information, including, but not limited to, subdivision (a) of Section 1749.65, paragraphs (3) to (7), inclusive, of subdivision (b) of, and subdivisions (c) to (f), inclusive, of, Section 1798.90, paragraph (1) of subdivision (a) of Section 1798.90.1, Sections 1798.29, 1798.81.5, and 1798.82, and Sections 22575 to 22579, inclusive, of the Business and Professions Code.
(B) Requiring the user to use a nonprepaid credit card or debit card for online access.
(C) Implementing a system that enables only individuals with accounts designated as adult accounts to access the website.
(5) Reasonable steps as used in paragraph (1) shall not include consent obtained through the minor.
(6) A seller’s reasonable and good faith reliance on bona fide evidence of the purchaser or recipient’s age shall constitute an affirmative defense to any action under this subdivision.
(7) A person or business required to comply with this section shall not retain, use, or disclose any information it receives from a purchaser or recipient in an effort to verify age pursuant to this section for any purpose other than as required to comply with, or as needed to demonstrate compliance with, this section, California law, or a state or federal court order.
(b) Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1) An aerosol container of paint that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(2) Etching cream that is capable of defacing property, as referenced in Section 594.1 of the Penal Code.
(3) Dangerous fireworks, as referenced in Sections 12505 and 12689 of the Health and Safety Code.
(4) Tanning in an ultraviolet tanning device, as referenced in Sections 22702 and 22706 of the Business and Professions Code.
(5) Dietary supplement products containing ephedrine group alkaloids, as referenced in Section 110423.2 of the Health and Safety Code.
(6) Body branding, as referenced in Sections 119301 and 119302 of the Health and Safety Code.
(c) Products or services that are illegal to sell to a minor under state law that are subject to subdivision (a) include all of the following:
(1) Firearms or handguns, as referenced in Sections 16520, 16640, and 27505 of the Penal Code.
(2) A BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
(3) Ammunition or reloaded ammunition, as referenced in Sections 16150 and 30300 of the Penal Code.
(4) Any tobacco, cigarette, cigarette papers, blunt wraps, any other preparation of tobacco, any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance, as referenced in Division 8.5 (commencing with Section 22950) of the Business and Professions Code, and Sections 308, 308.1, 308.2, and 308.3 of the Penal Code.
(5) Electronic cigarettes, as referenced in Section 119406 of the Health and Safety Code.
(6) A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
(d) (1) Products that are illegal to make available to minors include pornographic websites.
(2)(A) “Pornographic website” means a website on which the owner of the website, for commercial gain, knowingly publishes sexually explicit content that, on an annual basis, exceeds one-third of the contents published on the website.
(B) “Sexually explicit content” means visual imagery of an individual or individuals engaging in an act of masturbation, sexual intercourse, oral copulation, or other overtly sexual conduct that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(e) In an action brought by a public prosecutor, a business or person that violates this section shall be subject to a civil penalty not exceeding seven thousand five hundred dollars ($7,500) for each violation.
(f) The provisions of this section do not apply to a business that is regulated by state or federal law providing greater protection to personal information or requiring greater age verification than provided by this section in regard to the subjects addressed by this section. Compliance with state or federal law shall be deemed compliance with this section with regard to those subjects. This subdivision does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information or age verification.
(g) For purposes of this section, a government-issued identification means any of the following:
(1) A document issued by a federal, state, county, or municipal government, or subdivision or agency thereof, including, but not limited to, an identification card or a valid motor vehicle operator’s license, including licenses or identification cards issued pursuant to Section 12801.9 of the Vehicle Code, that contains the name, date of birth, description, and picture of the person.
(2) A valid passport issued by the United States or by a foreign government.
(3) A valid identification card issued to a member of the United States Armed Forces that includes the date of birth and picture of the person.
(4) A valid consular identification document.
(5) An identification card issued by a federally recognized tribal government.
8) Related legislation. AB 1949 (Wicks, 2024) would prohibit a business from collecting the personal information of a consumer under 18 years of age unless the consumer, or the consumer’s parent or guardian if under 13, affirmatively authorizes the collection. This committee passed the bill on an 8-0 vote.
AB 1501 (Hoover, 2023) would have required a commercial entity that knowingly and intentionally publishes or distributes sexually explicit material on the internet from a sexually explicit website to use an age verification method that prevents minors from accessing sexually explicit material. The bill was referred to this committee but was not heard.
ARGUMENTS IN SUPPORT:
Concerned Women for America write:
AB 3080 is a step toward protecting children from accidental or unintentional exposure to obscene and indecent images and videos. Requiring internet platforms that host adult content to employ the use of ageverification software to prevent minors from accessing obscene and indecent material online will benefit children and families.
Family Policy Alliance writes:
Not only does pornography harm children’s mental well-being – there is also a strong correlation between pornography, human trafficking, and sexual abuse. In fact, research reveals that it is impossible to determine whether pornographic videos portray consensual sex, as many adult sites contain explicit videos and images of adults and minors, who have not consented to filming such content. Sex trafficking is the supply side of the pornography industry. Therefore, age verification requirements are crucial to preventing such abuse by limiting the access of pornography and explicit material to minors, thereby curbing the demand for that supply.
Pacific Justice Institute writes:
Similar age-verification legislation has already passed in eleven (11) states and been introduced in at least twenty-four (24) others. Last month, the U.S. Court of Appeals for the Fifth Circuit in Free Speech Coalition v. Paxton upheld Texas’s age verification law, HB 1181. In upholding the Texas law, the court expressly held that the new “age-verification requirement does not violate the First Amendment.” Specifically, the court found that because the state has an interest in maintaining only age-appropriate access to certain content, it was not too burdensome to require the IDs of adults to purchase pornography. Moreover, the court determined that in today’s age, age verification on the internet need not be burdensome to adults and adult speech. With the development of techniques relying on zero-knowledge proofs - widely used in cryptocurrency - and other cryptographic techniques, anonymous online authentication of age, or of any other feature, is possible.
ARGUMENTS IN OPPOSITION:
Free Speech Coalition, which represents the adult content industry, argues the goal of this bill “is to impose an extremely conservative version of morality on our state, creating dangerous privacy risks for adults, and violating the First Amendment rights of both consumers and creators of protected expression in the process.”
Oakland Privacy writes:
While the committee may prioritize keeping minors away from porn more highly than the safety of workers in the sex professions, we should understand that when the better-run and more legitimate sites are pushed away, the ones that fill the gap are more dangerous, especially to the women who appear on porn sites. Issues of consent, protections from sexually transmitted diseases, and the use of their bodies and faces without authorization have slowly started to be dealt with on the larger, more legitimate sites, but run rampant on the smaller, wilder, unregulated ones. Pushing the porn traffic to the furthest reaches of the web makes sex workers a lot more unsafe. This was clearly demonstrated by the passage of SESTA/FOSTA and the end of Backpage which sex workers continue to insist has made their lives many degrees more dangerous. (Footnotes omitted.)
REGISTERED SUPPORT / OPPOSITION:
Support
California Baptist for Biblical Values
California Catholic Conference
California Family Council
Church State Council
Concerned Women for America
Exodus Cry
Family Policy Alliance
Interfaith Statewide Coalition
Magdalene Hope, INC.
Pacific Justice Institute - Center for Public Policy
Real Impact
Opposition
Advocates for Youth
Center for LGBTQ Economic Advancement & Research (CLEAR)
Decriminalize Sex Work
EducateUs
Electronic Frontier Foundation
Equality Federation
Free Speech Coalition
GLSEN
National Abortion Federation
National Federation Against Censorship
National Working Positive Coalition
Netchoice
New Moon Network
NMAC
Oakland Privacy
Organization for Polyamory and Ethical Non-monogamy (OPEN)
Reproaction
Rise: Healthy for Life
Secular Student Alliance
Siecus: Sex Ed for Social Change
Woodhull Action Fund
Analysis Prepared by: Josh Tosney / P. & C.P. / (916) 319-2200
Common Sense Media, Teens and Pornography (January 10, 2023) Teens and Pornography | Common Sense Media. ↑
Ibid. ↑
Id. at p. 7. ↑
Orenstein, The Troubling Trend in Teenage Sex (Apr. 12, 2024) New York Times, Opinion | The Troubling Trend in Teenage Sex - The New York Times (nytimes.com). ↑
Center for Renewing America, Combatting Obscenity on the Internet, Combating Obscenity on the Internet: A Legal and Legislative Path Forward | The Center for Renewing America (americarenewing.com) ↑
Barchenger, Arizona will not require age verification for porn sites after Governor vetoes GOP bill (Apr. 8, 2024) Arizona Republic, https://www.msn.com/en-us/news/politics/arizona-will-not-require-age-verification-for-porn-sites-after-governor-vetoes-gop-bill/ar-BB1linhy. ↑
Brown, Pornhub Pulls Out of Seventh State (Mar. 18, 2024), Reason.com, Pornhub Pulls Out of Texas Because of Age Verification Law (reason.com). ↑
Online age verification: balancing privacy and the protection of minors (Sept 22, 2022), https://www.cnil.fr/en/online-age-verification-balancing-privacy-and-protection-minors. ↑
Roth, Online age verification is coming, and privacy is on the chopping block (May 15, 2023) The Verge, https://www.theverge.com/23721306/online-age-verification-privacy-laws-child-safety. ↑
U.S. Const., 1st and 14th Amends; Cal. Const. art. I, § 2. ↑
Turner Broad. Sys., Inc. v. F.C.C. (1994) 512 U.S. 622, 641. ↑
Va. State Bd. of Educ. v. Barnette (1943) 319 U.S. 624, 642. ↑
R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). ↑
Sable Communications of Cal. v. FCC (1989) 492 U.S. 115, 126. Miller v. California (1973) 414 U.S. 15 set forth the test for obscenity: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (Id. at p. 24 [internal quotation marks and citations omitted].) ↑
Id. at p. 641. ↑
Sable Communications of Cal. v. FCC (1989) 492 U.S. 115, 126.; Ashcroft v. ACLU (2004) 542 U.S. 656, 670; see Reed v. Town of Gilbert (2015) 135 S.Ct. 2218, 222; United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 813. ↑
Sable Communications of Cal. v. FCC, supra, 492 U.S. at p. 126. ↑
Id. at pp. 860-861. ↑
Id. at p. 875. ↑
Id. at pp. 876-877. ↑
Ashcroft v. ACLU, surpa, 542 U.S. at p. 661. ↑
Id. at p. 662. ↑
Id. at p. 673. ↑
Free Speech Coal., Inc. v. Paxton (5th Cir. 2024) 95 F.4th 263. ↑
Civ. Code § 1798.99.1. ↑
Pen. Code § 647(j)(4)(A). ↑
See fn. 14. ↑
Discussed in Hearing
1MIN
Senate Standing Committee on Appropriations
7MIN
Senate Standing Committee on Judiciary
12MIN
Assembly Floor
35MIN
Assembly Standing Committee on Judiciary
49MIN
