January 5, 2012, read first time and referred to Committee on Judiciary.
Introduced
Second Regular Session 117th General Assembly (2012)
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SENATE BILL No. 316
A BILL FOR AN ACT to amend the Indiana Code concerning trade
regulation.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 24-4.3; (12)IN0316.1.1. -->
SECTION 1. IC 24-4.3 IS ADDED TO THE INDIANA CODE AS
A
NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
2012]:
ARTICLE 4.3. CHILD PROTECTION REGISTRY
Chapter 1. Definitions
Sec. 1. The definitions in this chapter apply throughout this
article.
Sec. 2. "Adult communication" refers to a communication that
satisfies either of the following:
(1) The communication has the express purpose of advertising
or promoting a product or service that a minor is prohibited
by law from purchasing.
(2) The communication contains or has the express purpose of
advertising or promoting material that is harmful to minors,
as described in IC 35-49-2-2.
Sec. 3. "Contact point" refers to any of the following:
(1) An electronic mail address.
(2) An instant message identity, subject to rules adopted by
the secretary of state under IC 24-4.3-2-4.
(3) A mobile or other telephone number.
(4) A facsimile number.
(5) An electronic address:
(A) similar to a contact point described in subdivisions (1)
through (4); and
(B) defined as a contact point by rule adopted under
IC 24-4.3-2-4.
Sec. 4. "Registered contact point" refers to a contact point that
has been registered on the registry for at least thirty (30) days.
Sec. 5. "Registered domain name" refers to a domain name that
has been registered on the registry for at least thirty (30) days.
Sec. 6. "Registry" refers to the child protection registry
established under IC 24-4.3-2-1.
Chapter 2. Establishing the Child Protection Registry
Sec. 1. (a) The secretary of state shall do either of the following:
(1) Establish and operate a child protection registry to
compile and secure a list of contact points the secretary of
state has received under this article.
(2) Contract with a third party to establish and secure the
registry described in subdivision (1).
(b) The secretary of state shall implement the registry described
in this section with respect to electronic mail addresses not later
than July 1, 2013.
(c) The secretary of state shall implement the registry described
in this section with respect to instant message identities not later
than January 1, 2014.
(d) The secretary of state shall implement the registry described
in this section with respect to mobile or other telephone numbers
not later than July 1, 2014.
Sec. 2. A person may register a contact point with the secretary
of state under rules adopted under section 4 of this chapter if:
(1) the contact point belongs to a minor;
(2) a minor has access to the contact point; or
(3) the contact point is used in a household in which a minor
is present.
Sec. 3. A school or other institution that primarily serves minors
may register its domain name with the secretary of state under
rules adopted under section 4 of this chapter.
Sec. 4. (a) The secretary of state may adopt rules under
IC 4-22-2 to implement this article.
(b) The secretary of state shall adopt rules to establish the
following:
(1) The procedures for a person to register a contact point
with the secretary of state under this chapter, including the
information necessary to register an instant message identity.
(2) The procedures for a school or other institution that
primarily serves minors to register its domain name with the
secretary of state.
(3) A mechanism under which a person may access the
registry to remove registered contact points from the person's
communications. The mechanism established under this
subdivision must protect the privacy and security of all
registered contact points.
(c) The secretary of state may adopt rules to do the following:
(1) Implement a program offering discounted fees to a sender
who meets enhanced security conditions established and
verified by:
(A) the secretary of state;
(B) a third party registry provider described in section
1(a)(2) of this chapter; or
(C) a designee of the secretary of state or a third party
registry provider described in section 1(a)(2) of this
chapter.
(2) For purposes of IC 24-4.3-1-3, to define similarity of an
electronic address for purposes of IC 24-4.3-1-3(5).
Sec. 5. The contents of the registry, and any complaint filed
about a sender who violates IC 24-4.3-3, are excepted from
disclosure as provided in IC 5-14-3-4(a).
Sec. 6. (a) The state shall promote the registry on the state's
official Internet web site.
(b) The secretary of state may allow a third party registry
provider described in section 1(a)(2) of this chapter to assist in any
public or industry awareness campaign promoting the registry.
Chapter 3. Requirements for Communicating With Contact
Points and Domains; Checking the Registry
Sec. 1. (a) Except as provided in section 3 of this chapter, a
person may not send, cause to be sent, or conspire with a third
party to send an adult communication to a registered contact point
or a registered domain name.
(b) Subject to section 3 of this chapter, consent of a minor is not
a defense to a violation of this section.
Sec. 2. (a) Before sending an adult communication to a contact
point or domain name, a person shall:
(1) use a mechanism established by rule adopted by the
secretary of state under IC 24-4.3-2-4(b)(3) to determine
whether the contact point is a registered contact point or the
domain name is a registered domain name; and
(2) pay a fee for use of the mechanism.
(b) The secretary of state shall adopt rules under IC 24-4.3-2-4
to establish a fee required under subsection (a)(2). The fee may not
be greater than the following:
(1) Three cents ($0.03) for each contact point checked against
the registry.
(2) Seventy-two thousand dollars ($72,000) a year.
Sec. 3. (a) Notwithstanding sections 1 and 2 of this chapter, a
person may send an adult communication to a registered contact
point if, before sending the communication, the person sending the
communication receives consent from an adult who controls the
registered contact point.
(b) A person who proposes to send a communication under
subsection (a) must do all of the following:
(1) Verify the age of the adult who controls the registered
contact point by inspecting the adult's government issued
identification card in a face to face transaction.
(2) Obtain a written record indicating the adult's consent that
is signed by the adult.
(3) Include in each communication:
(A) a notice that the adult may rescind the consent; and
(B) information that allows the adult to opt out of receiving
future communications.
(4) Notify the secretary of state that the person intends to send
communications under this section.
(c) The secretary of state shall adopt and implement rules to
verify that a person providing notification under subsection (b)(4)
complies with subsection (b).
Sec. 4. A communications service provider (as defined in
IC 8-1-2.6-13(b)) does not violate section 1 of this chapter solely by
transmitting a message across the communications service
provider's network.
Chapter 4. Enforcement by the Secretary of State
Sec. 1. The secretary of state shall investigate complaints of
violations of IC 24-4.3-3.
Sec. 2. In an action under this chapter, the secretary of state
may obtain any or all of the following:
(1) An injunction to enjoin future violations of IC 24-4.3-3.
(2) A civil penalty of not more than the following:
(A) Ten thousand dollars ($10,000) for the first violation of
IC 24-4.3-3.
(B) Twenty-five thousand dollars ($25,000) for each
violation after the first violation.
For purposes of this subdivision, each communication sent to
a registered contact point or registered domain name in
violation of IC 24-4.3-3 is considered a separate violation.
(3) All money the defendant obtained through a violation of
IC 24-4.3-3.
(4) The secretary of state's reasonable costs in:
(A) the investigation of the violation of IC 24-4.3-3; and
(B) maintaining the action.
(5) Reasonable attorney's fees.
(6) Costs of the action.
Sec. 3. An action brought under this chapter may not be brought
more than two (2) years after the occurrence of the violation of
IC 24-4.3-3.
Sec. 4. An action under this chapter may be brought in the
circuit or superior court of Marion County.
Sec. 5. The secretary of state may employ counsel to represent
the state in an action under this chapter.
Chapter 5. Private Right of Action
Sec. 1. Either of the following may bring an action in a court
with jurisdiction for a violation of IC 24-4.3-3:
(1) A user of a registered contact point or registered domain
name.
(2) A legal guardian of a user described in subdivision (1).
Sec. 2. (a) A party who prevails in an action brought by the
party under section 1 of this chapter may recover the greater of the
following:
(1) Actual damages.
(2) One thousand dollars ($1,000) for each communication
sent in violation of IC 24-4.3-3.
(b) A party who prevails in an action brought by the party
under section 1 of this chapter is entitled to costs and reasonable
attorney's fees.