Amended  IN  Assembly  April 18, 2024
Amended  IN  Assembly  March 21, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 3080

Introduced by Assembly Member Alanis

February 16, 2024

An act to add Title 22.1 (commencing with Section 3273.70) to Part 4 of Division 3 amend Section 1798.99.1 of the Civil Code, relating to consumer protection.


LEGISLATIVE COUNSEL'S DIGEST


AB 3080, as amended, Alanis. Age verification: obscene and indecent material. The Parent’s Accountability and Child Protection Act.
Existing law, the Parent’s 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 person’s 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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


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), 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 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.

(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 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.

(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 Material
3273.70.

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 driver’s 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 person’s 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 attorney’s 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.