In light of SCOTUS assholery, would anyone be interested in a break down of the actual text of Texas H.B. No. 1181?
I'm not a lawyer or legal professional, but I've learned a bit of legalese over the years, and this one is relatively short and straightforward for me to translate.
Again, I'm not a legal professional, none of this should be taken as legal advise, etc etc, you know the drill.
Texas H.B. No. 1181 amends the Texas civil codes by adding an extra chapter
"CHAPTER 129B. LIABILITY FOR ALLOWING MINORS TO ACCESS PORNOGRAPHIC MATERIAL"
Right off the bat, this is a CIVIL code, meaning no criminal charges, you can only be fined for it. BUT it also means you don't get the protections afforded by the criminal code: not trial by jury, much lower burden of proof on them, etc.
The first section of the new chapter is, as usual, definitions of the terms used in this law.
Terms defined are:
Commercial entity
Distribute
Minor
News-gathering organization
Publish
Sexual material harmful to minors
Transactional data
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Commercial entity is fairly broadly defined -- there's a long list of business types but it also says 'other legally recognized business entity'.
As a general rule figure they mean anyone making money in some fashion.
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Distribute is also broadly defined as "issue, sell, give, provide, deliver, transfer, transmute, circulate, or disseminate by any means."
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Minor is the standard '18 and under'
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'News-gathering organization' only applies to employees of a news source acting 'within course and scope of that employment' and they need to be able to document that employment.
Note that I don't think this would cover folks with a hobby blog or youtube channel or whatever.
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Publish basically means putting stuff on a publicly available internet site.
It'll be interesting to see how this one is used, because there is no definition or mention of private internet sites. Our first sign of a possible loophole.
Now we get to the big one:
"Sexual material harmful to minors"
This one is broken down into three parts. Material needs to meet all three parts of the definition to be covered here.
A) is the average mealy-mouthed 'you'll know it when i see it' definition of porn. Basically, if the average person would think it's meant to 'appeal or pander to purient interest'.
Annoyingly here, your actual intent doesn't matter. If the 'average person' thinks you meant it to be prurient, it counts.
B) this is the long bit that gets into actual details.
' in a manner patently offensive with respect to minors, exploits, is devoted to, or principally consists of descriptions of actual, simulated, or animated displays or depictions of:'
we'll ignore the first clause, it's BS way.
They really went and threw in the whole kitchen sink here -- descriptions means it applies to written erotica as well as traditional porn. Animated and simulated mean it doesn't matter if your are showing actual people doing actual things. Drawings, gifs, Second Life screenshots. Doesn't matter. If it includes any of the below stuff, it counts.
What is the below stuff?
(i) a person's pubic hair, anus, or genitals or the nipple of the female breast;
(ii) touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals; or
(iii) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act;
Basically anything that shows a naked human body (or upper torso if they decide it counts as 'female'), touching that body, actual sex stuff, presumed sex stuff, and some not-usually-sex stuff.
I assume then intended catch all non-sexual kinks in here as well as the usual.
(continued)
The third part of 'sexual material harmful to minors'
C) 'taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.'
It's that 'for minors' that's the kicker here. It doesn't matter how much scientific, political, etc value your website has. If it doesn't have value for minors you are covered here.
Small blessings that this bit exempts Scarleteen and similar sites, which many of us worried about. But adults need sites like that too, damn it!
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Transactional data
final term to be defined and I'm a bit worried about why they are including this one.
'a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event. The term includes
records from mortgage, education, and employment entities.'
I admit the legalese is getting a bit deep for me here, hopefully it'll make a bit more sense in context.
This is actually law part of the law. The part that tells us who has to do what to avoid getting in trouble.
It opens saying 'A commercial entity...'
So everyone that ISN'T a commercial entity isn't affected by this law. A whole bunch of us can breath a bit sigh of relief.
But who IS a commercial entity?
Remember, that was a really broad definition. It probably covers anyone and anything taking money for the work on the website. That could include having the website supported by patreon memberships or some such. If you are in doubt talk to a lawyer, but in general if you have a hobby website you do just for fun yuo are probably okay, but if you put a kofi link on the website, I'd worry.
Moving on.
'publishes or distributes material' on an internet website, including social media.
So remember, publish has to be on a 'public website', but distribute doesn't have that restriction. So this may destroy our theorized 'private website' loophole. Or not. Talk to a lawyer.
And social media? Yeah. Social media is included.
Okay, here's a key part:
'more than one third of which is sexual material harmful to minors'
This means that sights like Ao3, which have erotica but the erotica is a minority of the site content, are in the clear. Same goes for a romantic webserial which includes some smut scenes within a larger story.
So that's the who -- people making money off of content that is more than 1/3 'sexually harmful for minors'.
The what is more straightforward:
These people must use age verification methods to be sure that minors can't access their stuff.
Section three defines what age verification methods are allowed.
It's a crappy definition.
means either
1) provide digital identification
("In this section, "digital identification" means information stored
on a digital network that may be accessed by a commercial entity and
that serves as proof of the identity of an individual.")
OR
2) comply with a commercial age verification system that verifies age using:
(A) government-issued identification; or
(B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.
A lot of people have wrestled with exactly what this section does and doesn't allow. What is an allowable method, etc.
I'm not sure I can weigh in effectively here, you need a tech expert for this. There are companies offering age verification services. (like captcha but worse) If yuo have an affected business /web presence it's probably worth looking into one.
This is a beautiful one. If you are required to use age verification, then you are ALSO required to post a 'sexual materials health warning'
Not only on the website itself, but ALSO in all advertisements for the website -- in 14 pt font or larger.
AND
to disply on the bottom of EVERY page of the website, the "U.S. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION HELPLINE"
and associated text.
Also in 14 pt or larger.
I got nothing useful to say about this.
Sounds like something that could work. Doesn't help most folks who already have sites up across the net.
This is a bonfire demo instance for testing purposes
