Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 72 Second Substitute (2021GS)

Sponsor

Rep. Pulsipher, S.

Final action

Governor Signed 3/23/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• requires a tablet or a smart phone (a device) sold in the state and manufactured on or after January 1 of the year following the year this bill takes effect to, when activated in the state, automatically enable a filter capable of blocking material that is harmful to minors;
• requires the filter enabled at activation to:
• prevent the user of the device from accessing material that is harmful to minors on the device;
• enable certain users to deactivate the filter for the device or for specific content; and
• notify the user when content is filtered;
• provides a process for the attorney general or a member of the public to bring a civil action against a manufacturer that manufactures a device on or after January 1 of the year following the year this bill takes effect if:
• the device does not contain an enabled filter upon activation in the state; and
• a minor accessed material that is harmful to minors on the device;
• allows for a civil penalty of up to $10 for each violation;
• requires that a portion of any civil penalty recovery be provided to the Crime Victims Reparations Fund;
• provides a process for curing the violation and paying a reduced penalty;
• requires the Judicial Council to adjust the penalty every five years; and

Every vote on this bill

Bill text

DEVICE FILTER AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Susan Pulsipher
Senate Sponsor: 
Wayne A. Harper
Cosponsors:
Kera Birkeland
Brady Brammer
Walt Brooks
Kay J. Christofferson
James A. Dunnigan
Dan N. Johnson
Karianne Lisonbee
Michael J. Petersen
Keven J. Stratton
Mike Winder
LONG TITLE
General Description:
This bill establishes filter requirements and enforcement mechanisms for tablets and
smart phones activated in the state on or after January 1 of the year following the year
this bill takes effect.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ requires a tablet or a smart phone (a device) sold in the state and manufactured on or
after January 1 of the year following the year this bill takes effect to, when activated
in the state, automatically enable a filter capable of blocking material that is harmful
to minors;
▸ requires the filter enabled at activation to:
• prevent the user of the device from accessing material that is harmful to minors
on the device;
• enable certain users to deactivate the filter for the device or for specific content;
and
• notify the user when content is filtered;
▸ provides a process for the attorney general or a member of the public to bring a civil
action against a manufacturer that manufactures a device on or after January 1 of the
year following the year this bill takes effect if:
• the device does not contain an enabled filter upon activation in the state; and
• a minor accessed material that is harmful to minors on the device;
▸ allows for a civil penalty of up to $10 for each violation;
▸ requires that a portion of any civil penalty recovery be provided to the Crime
Victims Reparations Fund;
▸ provides a process for curing the violation and paying a reduced penalty;
▸ requires the Judicial Council to adjust the penalty every five years; and
▸ provides a sunset date.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a contingent effective date.
This bill provides revisor instructions.
Utah Code Sections Affected:
AMENDS:
63I-2-278
, as last amended by Laws of Utah 2018, Chapters 38 and 281
ENACTS:
78B-6-2201
, Utah Code Annotated 1953
78B-6-2202
, Utah Code Annotated 1953
78B-6-2203
, Utah Code Annotated 1953
78B-6-2204
, Utah Code Annotated 1953
78B-6-2205
, Utah Code Annotated 1953
78B-6-2206
, Utah Code Annotated 1953
Utah Code Sections Affected by Revisor Instructions:
78B-6-2202
, Utah Code Annotated 1953
78B-6-2203
, Utah Code Annotated 1953
78B-6-2204
, Utah Code Annotated 1953
78B-6-2206
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63I-2-278
 is amended to read:
63I-2-278.
Repeal dates -- Title 78A and Title 78B.
[
Subsection 
78B-6-144
(5) is repealed January 1, 2019.
]
If Title 78B, Chapter 6, Part 22, Cause of Action to Protect Minors from Unfiltered
Devices, is not in effect before January 1, 2031, Title 78B, Chapter 6, Part 22, Cause of Action
to Protect Minors from Unfiltered Devices, is repealed January 1, 2031.
Section 2. Section 
78B-6-2201
 is enacted to read:
Part 22. Cause of Action to Protect Minors from Unfiltered Devices
 78B-6-2201.
Title.
This part is known as "Cause of Action to Protect Minors from Unfiltered Devices."
Section 3. Section 
78B-6-2202
 is enacted to read:
 78B-6-2202.
Definitions.
As used in this part:
(1) "Activate" means the process of powering on a device and associating it with a new
user account.
(2) "Device" means a tablet or a smart phone sold in Utah and manufactured on or after
January 1 of the year following the year this bill takes effect.
(3) "Filter" means software installed on a device that is capable of preventing the
device from accessing or displaying material that is harmful to minors through the Internet or
any applications owned and controlled by the manufacturer and installed on the device.
(4) "Harmful to minors" means the same as that term is defined in Section 
76-10-1201
.
(5) "Internet" means the same as that term is defined in Section 
13-40-102
.
(6) (a) "Manufacturer" means a person that:
(i) is engaged in the business of manufacturing a device; and
(ii) has a commercial registered agent as that term is defined in Section 
16-17-102
.
(b) "Manufacturer" includes a registrant as that term is defined in Section 
70-3a-103
.
(7) "Minor" means an individual under the age of 18 who is not emancipated, married,
or a member of the armed forces of the United States.
(8) "Smart phone" means the same as that term is defined in Section 
63A-2-101.5
.
(9) "Tablet" means a mobile device that:
(a) is equipped with a mobile operating system, touchscreen display, and rechargeable
battery; and
(b) has the ability to support access to a cellular network.
Section 4. Section 
78B-6-2203
 is enacted to read:
 78B-6-2203.
Filter required.
Beginning on January 1 of the year following the year this bill takes effect, a
manufacturer shall manufacture a device that, when activated in the state, automatically enables
a filter that:
(1) when enabled, prevents the user from accessing or downloading material that is
harmful to minors on:
(a) mobile data networks;
(b) applications owned and controlled by the manufacturer;
(c) wired Internet networks; and
(d) wireless Internet networks;
(2) notifies the user of the device when the filter blocks the device from downloading
an application or accessing a website;
(3) gives a user with a passcode the opportunity to unblock a filtered application or
website; and
(4) reasonably precludes a user other than a user with a passcode the opportunity to
deactivate, modify, or uninstall the filter.
Section 5. Section 
78B-6-2204
 is enacted to read:
 78B-6-2204.
Liability.
(1) Beginning January 1 of the year following the year this bill takes effect, a
manufacturer of a device is liable to a minor in the state if:
(a) the device is activated in the state;
(b) the device does not, upon activation in the state, enable a filter that complies with
the requirements described in Section 
78B-6-2203
; and
(c) the minor accesses material that is harmful to minors on the device.
(2) Nothing in this part affects any private right of action existing under other law,
including contract.
(3) Notwithstanding Subsection (1), this section does not apply to a manufacturer that
makes a good faith effort to provide a device that, upon activation of the device in the state,
automatically enables a generally accepted and commercially reasonable method of filtration in
accordance with this part and industry standards.
Section 6. Section 
78B-6-2205
 is enacted to read:
 78B-6-2205.
Damages -- Class action.
(1) If a court finds that a manufacturer is liable under Section 
78B-6-2204
, the court
may award the plaintiff actual damages.
(2) A class action may be brought under this part in accordance with Utah Rules of
Civil Procedure, Rule 23.
Section 7. Section 
78B-6-2206
 is enacted to read:
 78B-6-2206.
Civil action for enforcement -- Penalties.
(1) (a) A manufacturer that is found liable under Section 
78B-6-2204
 shall be:
(i) liable for civil penalties not to exceed $10 per violation, plus filing fees and attorney
fees, in addition to any other penalty established by law; and
(ii) enjoined from further violations.
(b) The civil penalty may be assessed and recovered in a civil action brought in any
court of competent jurisdiction.
(c) For purposes of assessing a penalty under Subsection (1), a manufacturer is
considered to have committed a separate violation for each device manufactured on or after
January 1 of the year following the year this bill takes effect, and activated in the state on
which:
(i) a filter is not automatically enabled; and
(ii) a minor encounters material harmful to minors.
(d) The total civil penalty assessed in a civil action brought under this section may not
exceed $500, regardless of how many separate violations the plaintiff establishes.
(2) (a) A plaintiff shall prove and a court shall find, by clear and convincing evidence,
that a manufacturer manufactured a device on or after January 1 of the year following the year
this bill takes effect, that was activated in the state in violation of Section 
78B-6-2203
.
(b) The plaintiff shall prove all other elements by a preponderance of the evidence.
(3) The court shall specify the amount of each of the following for each violation:
(a) the civil penalty;
(b) filing fees; and
(c) attorney fees.
(4) In assessing the amount of a civil penalty for a violation of this chapter, the court
shall consider the following:
(a) the nature and extent of the violation;
(b) the number and severity of the violations;
(c) the economic effect of the penalty on the violator;
(d) the good faith measures the violator took to comply with this part;
(e) the timing of the measures the violator took to comply with this part;
(f) the willfulness of the violator's misconduct;
(g) the deterrent effect that the imposition of the penalty would have on both the
violator and the regulated community as a whole; and
(h) any other factor that the court determines justice requires.
(5) Actions pursuant to this part may be brought by the attorney general's office in the
name of the people of the state or by a private individual in accordance with Subsection (6).
(6) A private individual may bring an action in the public interest to establish liability
under Section 
78B-6-2204
 pursuant to this section and after satisfying the requirements of
Subsections (7), (8), and (9), if:
(a) the individual has served on the alleged violator and the attorney general's office a
notice of an alleged violation of Subsection 
78B-6-2203
(3);
(b) the attorney general's office has not provided a letter to the noticing party within 45
days after the day on which the attorney general's office receives the notice of an alleged
violation indicating that:
(i) an action is currently being pursued or will be pursued by the attorney general's
office regarding the violation; or
(ii) the attorney general believes that there is no merit to the action; and
(c) the alleged violator has not responded to the notice of alleged violation or returned
the proof of compliance form provided in Subsection (11).
(7) (a) The attorney for the noticing party, or the noticing party if the noticing party is
not represented by an attorney, shall execute the notice of an alleged violation.
(b) The notice of an alleged violation shall:
(i) state that the individual executing the notice believes that there is a violation; and
(ii) provide factual information sufficient to establish the basis for the alleged
violation.
(8) (a) The attorney general shall review the notice of an alleged violation and may
confer with the noticing party.
(b) The attorney general shall provide, within 45 days after the day on which the
attorney general received the notice of an alleged violation, a letter to the noticing party and the
alleged violator that states whether or not the attorney general finds merit in the action.
(9) (a) An individual who serves a notice of an alleged violation described in
Subsection (7) shall complete and provide to the alleged violator at the time the notice of the
alleged violation is served, a notice of special compliance procedure and proof of compliance
form pursuant to Subsection (11).
(b) The individual may file an action against the alleged violator, or recover from the
alleged violator, if:
(i) the notice of alleged violation alleges that the alleged violator failed to manufacture
a device that, when activated in the state, automatically enabled a filter as required under
Section 
78B-6-2203
;
(ii) a minor encountered material harmful to minors on the device without the option to
enable a filter; and
(iii) within 60 days after the day on which the alleged violator receives the notice of the
alleged violation, the alleged violator has not:
(A) corrected the alleged violation and all similar violations known to the alleged
violator;
(B) agreed to pay a penalty for the alleged violation in the amount of $10 per violation,
up to $500, regardless of the number of separate violations alleged in the notice; and
(C) notified, in writing, the noticing party and the attorney general's office that the
violation has been corrected.
(10) (a) The written notice required in Subsection (9)(b)(iii)(C) shall be the notice of
special compliance procedure and proof of compliance form specified in Subsection (11).
(b) The alleged violator shall deliver the civil penalty to the noticing party within 60
days after the day on which the alleged violator received the notice of the alleged violation.
(11) The notice required to be provided to an alleged violator pursuant to Subsection
(9) shall be presented as follows:
"Date:
Name of Noticing Party or Attorney for Noticing Party:
Address:
Phone Number:
SPECIAL COMPLIANCE PROCEDURE
PROOF OF COMPLIANCE
You are receiving this form because the Noticing Party listed above has alleged that you
are in violation of Utah Code Section 
78B-6-2202
.
The Noticing Party may bring legal proceedings against you for the alleged violation
checked below if:
(1) you have not actually taken the corrective steps that you have certified in this form;
(2) the Noticing Party has not received this form at the address shown above,
accurately completed by you, postmarked within 50 days after you receive this notice; and
(3) the Noticing Party does not receive the required $10 penalty payment for each
violation alleged, with a total payment not to exceed $500 regardless of the number of separate
violations alleged in the notice, from you at the address shown above postmarked within 60
days of your receiving this notice.
PART 1: TO BE COMPLETED BY THE NOTICING PARTY OR ATTORNEY FOR
THE NOTICING PARTY
This notice of alleged violation is for failure to provide an activated filter to protect
minors against exposure to materials considered harmful to minors. [provide complete
description of violation(s), including when and where observed and the serial number(s) of the
device(s) involved]
Date:
Name of Noticing Party or Attorney for Noticing Party:
Address:
Phone Number:
PART 2: TO BE COMPLETED BY THE ALLEGED VIOLATOR OR AUTHORIZED
REPRESENTATIVE
Certification of Compliance
Accurate completion of this form will demonstrate you are now in compliance with
Utah Code Section 
78B-6-2203
, for the alleged violation listed above. You must complete and
submit the form below to the Noticing Party at the address shown above, with a copy to the
Utah Attorney General's Office, postmarked within 50 days of you receiving this notice.
I hereby agree to pay, within 60 days of receipt of this notice, a penalty of $10 for each
violation alleged to the Noticing Party only and certify that I have complied by (check only one
of the following):
[ ] Providing the party at the address shown above with information about how to
enable a filter.
[ ] Providing the party at the address shown above with information about how to
exchange a device that did not have a filter automatically enable upon activation for a
replacement device of the same model that will automatically enable the filter upon activation
in the state.
CERTIFICATION
My statements on this form, and on any attachments to it, are true, complete, and
correct to the best of my knowledge and belief and are made in good faith. I have carefully read
the instructions to complete this form.
Signature of alleged violator or authorized representative:
Date:
Name and title of signatory:".
(12) If a lawsuit is commenced, the plaintiff may include additional violations in the
claim that are discovered through the discovery process.
(13) An alleged violator shall satisfy the conditions set forth in Subsection (11) only
one time per device.
(14) (a) Notwithstanding an alleged violator's compliance with Subsection (10), the
attorney general may file an action pursuant to Subsection (5) against the alleged violator.
(b) In any action, a court shall reduce the amount of any civil penalty for a violation to
reflect any payment made by the alleged violator to a private individual in accordance with
Subsection (10) for the same alleged violation.
(15) Payments shall be made as follows:
(a) a civil penalty ordered by the court shall be paid to the plaintiff as directed by the
court; and
(b) a penalty paid in accordance with the special compliance procedure in Subsection
(11) shall be made directly to the noticing party.
(16) (a) The Utah Office for Victims of Crimes shall receive 50% of any penalty paid
in accordance with this section.
(b) Funds received shall be deposited into the Crime Victim Reparations Fund created
in Section 
63M-7-526
.
(c) The penalty amount upon which the 50% is calculated may not include attorney
fees or costs awarded by the court.
(d) If the penalty is paid to a noticing party in accordance with Subsection (11), the
noticing party shall remit the amount required by this Subsection (16) along with a copy of the
Special Compliance Procedure document.
(e) If a civil penalty is ordered by the court, the plaintiff shall remit the amount
required by this Subsection (16) along with a copy of the court order.
(17) The attorney general's office shall provide to the Utah Office for Victims of Crime
a copy of all notices of alleged violations to which the attorney general's office did not respond
with a letter of merit in accordance with Subsection (8).
(18) The court shall provide to the Utah Office for Victims of Crime a copy of the
court's order for payment.
(19) The Utah Office for Victims of Crime shall:
(a) maintain a record of documents and payments submitted pursuant to Subsections
(16), (17), and (18); and
(b) create and provide to the Legislature in odd-numbered years beginning after
November of the year following the year this bill takes effect a report containing the following
for the previous two years:
(i) the number of notices of alleged violations received from the attorney general's
office;
(ii) the number of court orders received; and
(iii) the total amount received and deposited into the Crime Victim Reparations Fund.
(20) This section does not apply to a manufacturer who makes a good faith effort to
install and enable upon activation in the state a generally accepted and commercially
reasonable method of filtration in accordance with this part and industry standards.
(21) (a) Beginning May 1 of the year following the year this bill takes effect, and at
each five-year interval, the Judicial Council shall adjust the dollar amount of the civil penalty
provided in Subsection (1) based on the change in the annual Consumer Price Index for the
most recent five-year period ending on December 31 of the previous year and rounded to the
nearest five dollars.
(b) The attorney general shall publish the dollar amount of the civil penalty together
with the date of the next scheduled adjustment.
Section 8. 
Contingent effective date.
(1) Title 78B, Chapter 6, Part 22, Cause of Action to Protect Minors from Unfiltered
Devices, takes effect on the first day of January following the day on which at least five states,
other than Utah, pass legislation in substantially the same form as Subsection 
78B-6-2203
(1)
and the enactments by the states have taken effect in each state.
(2) The lieutenant governor shall inform the legislative general counsel, in writing, of
the date Title 78B, Chapter 6, Part 22, Cause of Action to Protect Minors from Unfiltered
Devices, takes effect in accordance with this section.
Section 9. 
Revisor instructions.
For purposes of Sections 
78B-6-2202
, 
78B-6-2203
, 
78B-6-2204
, and 
78B-6-2206
, the
Legislature intends that the Office of Legislative Research and General Counsel, in preparing
the Utah Code database for publication, on the date this bill takes effect, replace the phrase "of
the year following the year this bill takes effect" with the year after the year the bill takes effect.
For example, if the lieutenant governor informs the legislative general counsel that this bill
takes effect in 2022, the Legislature intends that the Office of Legislative Research and General
Counsel replace the phrase "of the year following the year this bill takes effect" with the date
"2023".