0001|            SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
    |
0002|                           SENATE BILL 127
    |
0003|     43rd legislature - STATE OF NEW MEXICO - second session, 1998
    |
0004|                                   
    |
0005|     
    |
0006|     
    |
0007|                                   
    |
0008|     
    |
0009|                                   
    |
0010|     
    |
0011|                                AN ACT
    |
0012|     RELATING TO SEXUALLY ORIENTED MATERIAL HARMFUL TO MINORS;
    |
0013|     INCLUDING COMPUTER COMMUNICATIONS; CREATING CRIMES; PROVIDING
    |
0014|     PENALTIES.
    |
0015|     
    |
0016|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
    |
0017|          Section 1.  A new section of Chapter 30, Article 37 NMSA
    |
0018|     1978 is enacted to read:
    |
0019|          "[NEW MATERIAL] DISSEMINATION OF MATERIAL THAT IS HARMFUL
    |
0020|     TO A MINOR BY COMPUTER--CHILD LURING.--
    |
0021|               A.  Dissemination of material that is harmful to a
    |
0022|     minor by computer consists of the use of a computer
    |
0023|     communications system that allows the input, output,
    |
0024|     examination or transfer of computer data or computer programs
    |
0025|     from one computer to another, to knowingly and intentionally
    |
<center>- 1 -</center>0001|     initiate or engage in communication with a person under
    |
0002|     eighteen years of age when such communication in whole or in
    |
0003|     part depicts actual or simulated nudity, sexual intercourse or
    |
0004|     any other sexual conduct.  Whoever commits dissemination of
    |
0005|     material that is harmful to a minor by computer is guilty of a
    |
0006|     misdemeanor.
    |
0007|               B.  Child luring consists of a person knowingly and
    |
0008|     intentionally inducing a child under sixteen years of age, by
    |
0009|     means of computer, to engage in sexual intercourse, sexual
    |
0010|     conduct or in a sexual or obscene performance, or to engage in
    |
0011|     any other sexual conduct when the perpetrator is at least
    |
0012|     three years older than the child.  Whoever commits child
    |
0013|     luring is guilty of a fourth degree felony.
    |
0014|               C.  In a prosecution for dissemination of material
    |
0015|     that is harmful to a minor by computer, it is a defense that
    |
0016|     the defendant has:
    |
0017|                    (1)  in good faith taken reasonable, effective
    |
0018|     and appropriate actions under the circumstances to restrict or
    |
0019|     prevent access by minors to indecent materials on computer,
    |
0020|     including any method that is feasible with available
    |
0021|     technology;
    |
0022|                    (2)  restricted access to indecent materials
    |
0023|     by requiring the use of a verified credit card, debit account,
    |
0024|     adult access code or adult personal identification number; or
    |
0025|                    (3)  in good faith established a mechanism
    |
<center>- 2 -</center>0001|     such as labeling, segregation or other means that enables the
    |
0002|     indecent material to be automatically blocked or screened by
    |
0003|     software or other capability reasonably available to persons who
    |
0004|     wish to effect such blocking or screening and the defendant has
    |
0005|     not otherwise solicited a minor not subject to such screening or
    |
0006|     blocking capabilities to access the indecent material or to
    |
0007|     circumvent the screening or blocking.
    |
0008|               D.  In a prosecution for dissemination of material
    |
0009|     that is harmful to a minor by computer, a person shall not be
    |
0010|     held to have violated the provisions of this section solely for
    |
0011|     providing access or connection to or from a facility, system or
    |
0012|     network not under the person's control, including transmission,
    |
0013|     downloading, intermediate storage, access software or other
    |
0014|     related capabilities that are incidental to providing access or
    |
0015|     connection and that do not include the creation of the content of
    |
0016|     the communication.
    |
0017|               E.  The limitations provided by Subsection D of this
    |
0018|     section shall not be applicable to a person who is a conspirator
    |
0019|     with an entity actively involved in the creation or knowing
    |
0020|     dissemination of indecent material by computer or who knowingly
    |
0021|     advertises the availability of indecent material by computer. 
    |
0022|     The limitations provided by Subsection D of this section shall
    |
0023|     not be applicable to a person who provides access or connection
    |
0024|     to a facility, system or network that disseminates indecent
    |
0025|     material by computer that is owned or controlled by him.
    |
<center>- 3 -</center>0001|               F.  No employer shall be held liable for the actions
    |
0002|     of an employee or agent unless the employee's or agent's conduct
    |
0003|     is within the scope of his employment or agency and the employer,
    |
0004|     having knowledge of such conduct, authorizes or ratifies the
    |
0005|     conduct or recklessly disregards the conduct."
    |
0006|          Section 2.  EFFECTIVE DATE.--The effective date of the
    |
0007|     provisions of this act is July 1, 1998.
    |
0008|                               
    |