2021 -- H 5150

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LC000590

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO COMMERCIAL LAW -- GENERAL REGULATORY PROVISIONS --

INDECENT DECEPTIVE TRADE PRACTICES, DUTIES OF CARRIERS, COMMUNITY

STANDARDS OF DECENCY, ADULT ENTERTAINMENT ESTABLISHMENTS -- HUMAN

TRAFFICKING AND CHILD EXPLOITATION PREVENTION ACT

     

     Introduced By: Representative David A. Bennett

     Date Introduced: January 25, 2021

     Referred To: House Corporations

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 6 of the General Laws entitled "COMMERCIAL LAW - GENERAL

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REGULATORY PROVISIONS" is hereby amended by adding thereto the following chapter:

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CHAPTER 58

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INDECENT DECEPTIVE TRADE PRACTICES

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     6-58-1. Short title.

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     (a) This chapter shall be known and cited as "Indecent Deceptive Trade Practices."

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     (b) This act shall be known and cited as the "Human Trafficking and Child Exploitation

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Prevention Act."

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     6-58-2. Legislative findings.

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     The legislature finds that:

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     (1) The United States Supreme Court in Ashcroft v. Am. Civil Liberties Union , 542 U.S.

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656 (2004) found that the legislative branch "may undoubtedly act to encourage the use of filters.

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It could also take steps to promote their development by industry, and their use by parents," which

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was the Supreme Court's way of signaling to the legislative branch to pass filter legislation that

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requires consumers to opt in to having access to obscene materials that are harmful to minors on

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Internet-enabled devices, since filters are the least restrictive means.

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     (2) The United States Supreme Court found in Ginsberg v. New York, 390 U.S. 629 (1968)

 

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that a physical display state statute that required physical brick and mortar stores to put physical

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obscene material behind a physical blinder rack was constitutional under first amendment

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heightened scrutiny, which means that a digital blinder rack statute that requires digital retailers to

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put digital obscene material behind a digital blinder rack is also constitutional on the same legal

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basis.

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     (3) Because the Supreme Court of the United States in Paris Adult Theatre I v. Slaton, 413

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US 49 (1973) made it clear that the states have a compelling interest to uphold community standards

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of decency, a statute requiring a filter deactivation fee regarding websites displaying obscene

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material and an adult service business admission fee are constitutional for being rationally related

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to a narrowly tailored compelling state interest.

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     (4) The Texas Supreme Court in Combs v. Texas Entertainment Association, et al., 347

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S.W.3d 277 (Sup. Ct. Tex. 2011), relying on federal constitutional law, found that a statute that

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required a five dollar ($5.00) admission fee to an adult service business that was to be remitted

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back to the state to enable the state to uphold community standards of decency was constitutional

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under First Amendment heightened scrutiny, which means that a one-time twenty dollar ($20.00)

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filter deactivation fee to enter the digital strip club on Internet-enabled devices is constitutional on

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the same legal basis, if remitted to the state to be used in the same manner.

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      (5) Live adult entertainment establishments contribute to a culture that tolerates the sexual

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objectification and exploitation of women, and contribute to the need for community-based services

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to respond to victims of all forms of sexual exploitation, including sexual harassment, trafficking,

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and sexual assault.

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     (6) Crime statistics show that the presence of live adult entertainment establishments may

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result in an increase in prohibited secondary sexual activities, such as prostitution, and other crimes

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in the surrounding community.

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     6-58-3. Definitions.

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     As used in this chapter:

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     (1) "Adult" has the same meaning as in § 11-67.1-2(a)(1).

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     (2) "Cellular telephone" means a communication device containing a unique electronic

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serial number that is programmed into its computer chip by its manufacturer and whose operation

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is dependent on the transmission of that electronic serial number along with a mobile identification

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number, which is assigned by the cellular telephone carrier, in the form of radio signals through

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cell sites and mobile switching stations.

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     (3) "Child pornography" has the same meaning as in § 11-9-1.3(c)(1) and 18 USC § 2256.

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     (4) "Computer" has the meaning given in 18 USC § 1030.

 

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     (5) "Consumer" means an individual who purchases or leases for personal, family, or

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household purposes an Internet-enabled device.

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     (6) "Data communications device" means an electronic device that receives electronic

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information from one source and transmits or routes it to another, including, but not limited to, any

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such bridge, router, switch, or gateway.

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     (7) "Filter" means a digital blocking capability, hardware or software that restricts or blocks

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Internet access to websites, electronic mail, chat, or other Internet-based communications based on

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category, site, or content, and the term means a digital blinder rack that can be deactivated by a

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retailer upon the satisfaction of certain nominal conditions.

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     (8) "Human trafficking" means the commission of an offense created by §§ 11-67.1-3 and

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11-67.1-7.

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     (9) "Internet" has the same meaning given in 31 USC § 5362.

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     (10) "Internet-enabled device" means a cellular telephone, computer, data communications

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device, or other product manufactured, distributed, or sold in this state that provides Internet access

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or plays a material role in distributing content on the Internet.

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     (11) "Internet service provider" has the same meaning as in § 39-2-20.1.

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     (12) "Indecent for minors" has the same meaning as in § 11-31-10(b)(1).

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     (13) "Knowingly" has the same meaning as ascribed in § 11-31-1(3).

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     (14) "Live adult entertainment establishment" means a business in which, as the major

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activity, customers congregate primarily for the purpose of viewing or associating with employees

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who display anatomical areas designed to provide sexual stimulation or sexual gratification: human

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genitals, pubic regions, buttock, and female breast below a point immediately above the top of the

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areola, even if covered with opaque clothing; all of the above anatomical areas when covered only

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by transparent or diaphanous clothing.

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     (15) "Minor" has the same meaning as defined in § 11-31-10(a).

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     (16) "Non-government group" means a nonprofit organization exempt from federal income

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taxation under section 501(c)(3), Internal Revenue Code of 1986, having as a primary purpose

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ending sexual violence in this state, for programs for the prevention of sexual violence, outreach

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programs, and technical assistance to and support of youth and rape crisis centers working to

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prevent sexual violence. The term also includes individuals and or any group that is doing anything

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to uphold community standards of decency.

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     (17) "Nude" means nudity as defined in § 11-31-10(b)(3).

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     (18) "Obscene" has the same meaning as defined in § 11-31-1(a) and the term includes

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websites that:

 

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     (i) Are known to facilitate human trafficking or prostitution; and

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     (ii) Display or depict images that are indecent to minors or that constitute sado-masochistic

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abuse, sexual conduct, or revenge pornography.

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     (19) "Personal identification information" means any information that identifies a person,

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including an individual's photograph, social security number, driver identification number, name,

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email address, address or telephone number.

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     (20) "Prostitution" means the profession of performing sexual acts for money and describes

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an offense under § 11-34.1-2.

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     (21) "Retailer" means any person who regularly engages in the manufacturing, sale, offer

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for sale or lease of Internet-enabled device or services in this state that make content accessible on

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the Internet. The term includes Internet service providers and suppliers and manufacturers of

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Internet-enabled devices that materially play a role in distributing content on the Internet or that

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make content accessible that are subject to the jurisdiction of this state.

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     (22) "Revenge pornography" means the distribution of sexually explicit images or video of

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individuals without their permission.

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     (23) "Sexual conduct" shall have the same meaning as ascribed in § 11-31-1(8)

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     (24) "Social media website" means an Internet website or application that enables users to

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communicate with each other by posting information, comments, messages, or images and that

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meets all of the following requirements:

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     (i) Is open to the public;

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     (ii) Has more than seventy-five million (75,000,000) subscribers;

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     (iii) From its inception, has not been specifically affiliated with any one religion or political

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party; and

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     (iv) Provides a means for the website's users to report obscene materials and has in place

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procedures for evaluating those reports and removing obscene material.

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     6-58-4. Continuing duties of retailers of Internet-enabled devices.

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     (a) A retailer that manufactures, sells, offers for sale, leases, or distributes an Internet-

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enabled device shall ensure that the product is equipped with an active and operating filter prior to

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sale that blocks by default websites that:

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     (1) Are known to facilitate human trafficking or prostitution; or

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     (2) Display child pornography, revenge pornography, or obscene material indecent for

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minors.

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     (b) A retailer that manufactures, sells, offers for sale, leases, or distributes an Internet-

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enabled device shall:

 

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     (1) Make reasonable and ongoing efforts to ensure that a product's filter functions properly;

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     (2) Establish a reporting mechanism, such as a website or call center, to allow a consumer

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to report unblocked websites displaying content described in subsection (a) of this section or to

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report blocked websites that are not displaying content described in subsection (a) of this section;

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     (3) Report child pornography received through the reporting mechanism to the National

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Center For Missing and Exploited Children's CyberTipline in accordance with 18 U.S.C. § 2258A;

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     (4) Not block access to websites that:

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     (i) Are social media websites that provide a means for the website's users to report obscene

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materials and have in place procedures for evaluating those reports and removing obscene material;

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     (ii) Serve primarily as a search engine; or

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     (iii) Display complete movies that meet the qualifications for a "G,""PG,""PG-13," or "R"

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rating by the Classification and Ratings Administration, as those qualifications existed on

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September 1, 2020.

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     (c) Except as provided by subsection (d) of this section, a retailer may not provide to a

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consumer, methods, source code, or other operating instructions for deactivating a product’s filter.

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     (d) A retailer of an Internet-enabled device shall deactivate the filter after a consumer:

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     (1) Requests that the capability be disabled;

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     (2) Presents personal identification information to verify that the consumer is eighteen (18)

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years of age or older;

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     (3) Acknowledges receiving a warning regarding the potential danger of deactivating the

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filter; and

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     (4) Pays a one-time twenty dollar ($20.00) filter deactivation fee to be remitted quarterly

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to the division of taxation to be deposited into the Rhode Island human trafficking and child

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exploitation prevention grant fund established under § 6-58-8(a).

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     (e) The filter deactivation fee in § 6-58-4(a)(4) is not content based but collected and

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remitted to the division of taxation to help the state bear the costs of upholding community

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standards of decency and of combating sex-related offenses and is to be used as set forth in § 6-58-

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8(e). The division of taxation shall prescribe the administration, payment, collection and

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enforcement of the fee imposed by § 6-58-4(d)(4). The division of taxation may annually adjust the

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one-time fee to account for inflation.

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     (f) Nothing in this chapter shall be construed to prevent a retailer of an Internet-enabled

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device from charging a reasonable separate fee to deactivate the filter, which it may retain for profit.

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     (g) The attorney general shall prepare and make available to retailers a form that includes

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all content that must be in the warning described in § 6-58-4(d)(3).

 

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     (h) Nothing in this act shall be construed to require a retailer of an Internet-enabled device

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to create a database or registry that contains the names or personal identification information of

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adults who knowingly chose to deactivate a product’s filter. A retailer of an Internet-enabled device

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shall take due care to protect the privacy rights of adult consumers under this section and shall not

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disclose the names or personal identification information of an adult consumer who decided to

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deactivate a product's filter.

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     6-58-5. Civil action - Deceptive trade practice - Affirmative defense.

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     (a) Pursuant to § 6-58-4(b)(2), if the filter blocks a website that is not displaying content

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described in § 6-58-4(a) and the block is reported to a call center or reporting mechanism, the

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website shall be unblocked within a reasonable time, but in no event later than five (5) business

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days after the block is first reported. A consumer may seek judicial relief to unblock a website that

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was wrongfully blocked by the filter. The prevailing party in a civil litigation may seek attorney

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fees, costs, and other forms of relief.

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     (b) Pursuant to § 6-58-4(b)(2), if a retailer of an Internet-enabled device is unresponsive to

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a report of a website displaying content described in § 6-58-4(a) that has breached the filter, the

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attorney general or a consumer may file a civil suit. The attorney general or a consumer may seek

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damages of up to five hundred dollars ($500) for each website that was reported but not

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subsequently blocked. The prevailing party in the civil action may seek attorneys' fees, costs, and

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other forms of relief.

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     (c) A retailer that fails to comply with a duty described in § 6-58-5(a) or § 6-58-5(b) has

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engaged in an unfair or deceptive trade practice in violation of § 6-13.1-2 and is subject to the civil

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remedies under § 6-13.1-5.

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     (d) It shall be an affirmative defense in a civil action to a charge of violating this chapter

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that the dissemination of the content described in § 6-58-4(a) was limited to institutions or

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organizations having scientific, educational, or other similar justifications for displaying the

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material.

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     6-58-6. Unlawful acts - Penalties.

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     (a) A retailer of an Internet-enabled device is guilty of an offense if it knowingly:

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     (1) Sells an Internet-enabled device without activated blocking capability that at least

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makes an attempt to block by default websites that display content described in § 6-58-4(a);

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     (2) Violates § 6-58-4(c);

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     (3) Fails to comply with the requirements of section in § 6-58-4(d) before deactivating a

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product's filter.

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     (b) A retailer shall be fined no more than one thousand dollars ($1,000) for a first offense

 

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and no more than two thousand five hundred dollars ($2,500) for any subsequent offenses.

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     (c) A retailer that commits an offense with a prior conviction under subsection (a) of this

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section commits a misdemeanor.

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     (d) A retailer that commits an offense under subsection (a) of this section has engaged in

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an unfair or deceptive trade practice in violation of § 6-13.1-2 and is subject to the civil remedies

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under § 6-13.1-5.

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     (e) Only the attorney general can enforce this section.

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     6-58-7. Exemptions.

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     (a) This act shall not apply to:

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     (1) An occasional sale of an Internet-enabled device by a person that is not regularly

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engaged in the trade business of selling Internet-enabled devices;

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     (2) Products produced or sold before enactment; and

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     (3) Independent third-party routers that are not affiliated with an Internet service provider.

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     (b) This act does not apply to a retailer that manufactures, sells, offers for sale, leases, or

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distributes an Internet-enabled device that is not subject to the jurisdiction of this state.

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     6-58-8. Rhode Island human trafficking and child exploitation prevention grant fund.

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     (a) There is established in the general treasury a special fund to be known as the "Rhode

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Island Human Trafficking and Child Exploitation Prevention Grant Fund" (the "fund") to be

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administered by the attorney general or designee.

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     (b) The purpose of the fund is:

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     (1) To promote the development throughout the state of locally-based and supported

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nonprofit programs for the survivors of sexual-related offenses and to support the quality of

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services provided;

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     (2) To empower any government and, especially, non-government groups working to

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uphold community standards of decency, to protect children, to strengthen families, or to develop,

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expand, or to prevent or offset the costs of sex-related offenses; and

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     (3) Not to promote a culture of perpetual victimhood but to maximize human flourishing

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and to protect the public's safety, health, and welfare.

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     (c) The purpose can be interpreted broadly to meet the evolving needs of the state.

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     (d) The fund shall consist of:

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     (1) Deactivation fees collected by the department of taxation from retailers of Internet-

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enabled devices under § 6-58-4(d)(4);

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     (2) Admission fees collected by the department of taxation from live adult entertainment

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establishments under § 6-58-9(a); and

 

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     (3) Any other appropriations, gifts, grants, donations, and bequests.

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     (e) Money deposited into the fund may be used only by:

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     (1) The attorney general or the attorney general's designee for grants to government and,

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especially, non-government entities and individuals that are working to uphold community

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standards of decency, to protect children, to strengthen families, or to develop, expand, or

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strengthen programs for victims of human trafficking or child exploitation, including providing

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grants for:

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     (i) The needs of the council on human trafficking, established by § 11-67.1-19;

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     (ii) The needs of any human trafficking task force or human trafficking coalition based in

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Rhode Island;

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     (iii) The needs of victim compensation;

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     (iv) Services to help women with substance abuse problems stay clean;

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     (v) Counselors and victim advocates who are trained to assist victims of domestic violence

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and sexual abuse;

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     (vi) Shelters for women, particularly those who have been exposed to prostitution or sex

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trafficking;

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     (vii) Research-based organizations;

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     (viii) Faith-based organizations working to uphold community standards of decency and

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assisting victims of human trafficking or other sex offenses;

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     (xi) Child advocacy centers;

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     (x) Organizations that provide legal advocacy to abused, neglected, and at-risk children;

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     (xi) Physical and mental health services;

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     (xii) Temporary and permanent housing placement.

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     (xiii) Employment, placement, education, training;

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     (xiv) Independent school districts;

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     (xv) Family counseling and therapy;

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     (xvi) Law enforcement;

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     (xvii) Musical, writing, design, cinematic, or pictorial creative art projects that promote

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decency;

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     (xviii) Regional nonprofit providers of civil legal services to provide legal assistance for

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sexual assault victims;

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     (xix) Grants to support technology in rape crisis centers;

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     (xx) Sexual violence awareness and prevention campaigns; and

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     (xxi) Scholarships for students demonstrating outstanding character or leadership skills.

 

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     (xxii) Any other state agency or organization for the purpose of conducting human

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trafficking enforcement programs or to uphold community standards of decency.

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     (f) Notwithstanding any law to the contrary, interest accruing on investments and deposits

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of the fund shall be credited to the fund shall not revert to the general fund, and shall be carried

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forward into the subsequent fiscal year.

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     (g) Any balance in the fund remaining unexpected at the end of a fiscal year shall not revert

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to the general fund but shall be carried forward into the subsequent fiscal year.

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     (h) The attorney general or designee shall evaluate activities conducted under this section

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each year and, on or before February 15, submit an annual report containing the evaluation to the

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senate secretary and chief clerk of the house of representatives and notify the legislature that the

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report is available. The report must include:

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     (1) The amount of filter deactivation fees received under § 6-58-4(d)(4);

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     (2) The amount of admission fees received under § 6-58-9(a);

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     (3) The manner in which the funds in the account maintained under subsection (e) of this

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section were distributed; and

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     (4) The manner in which each entity receiving a grant under subsection (e) of this section

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used the grant money.

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     (i) The attorney general or designee may by rule:

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     (1) Determine eligibility requirements for any grant awarded under this section;

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     (2) Require a grant recipient to offer minimum services for a period of time before

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receiving a grant and to continue to offer minimum services during the grant period; and

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     (3) Require a grant recipient to submit financial and programmatic reports.

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     (j) The attorney general or designee will not spend more than ten percent (10%) of the

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available funds on the administration of the fund.

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     6-58-9. Live adult entertainment establishment admission fee.

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     (a) A five dollar ($5.00) admission fee is imposed for each entry by each customer admitted

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to a live adult entertainment establishment to be remitted quarterly to the department of taxation

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and deposited into the Rhode Island human trafficking and child exploitation prevention grant fund

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established under § 6-58-8(a). The department of taxation shall prescribe the method of

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administration, payment, collection and enforcement of the fee imposed by this section.

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     (b) The admission fee is not content based but imposed and remitted to the state to offset

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secondary harmful effects and to help the state uphold community standards of decency and to

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combat sex-related crimes and is to be used as set forth as ascribed under § 6-58-9(a).

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     (c) The admission fee is in addition to all other taxes imposed on the business that offers

 

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adult entertainment.

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     (d) Each live adult entertainment establishment shall record daily in the manner required

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by the department of taxation the number of customers admitted to the business. The business shall

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maintain the records for the period required by the department of taxation and make the records

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available only for inspection and audit on request by the department of taxation. The records shall

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not contain the names or personal information of any of the customers.

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     (e) This section does not require a live adult entertainment establishment to impose a tax

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on a customer of the business. A business has the discretion to determine the manner in which the

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business derives the money required to pay the tax imposed under this section.

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     SECTION 2. The Legislature recognizes some government and non-government groups in

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Rhode Island that have been either working to uphold community standards of decency or to

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combat sex-related offenses that could be prospective beneficiaries of the grant fund under § 6-58-

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8(a). This includes:

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     (a) Rhode Island Human Trafficking Task Force, Sex Trafficking Law Enforcement Task

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Force, RI Advocacy for Children, Children's Advocacy Center of Bristol County, Day One, Plan

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USA, Because I am a Girl, Crossroads RI, Sojourner House Inc., Crossroads RI, Rhode Island

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Coalition for the Homeless, Holy Family Home for Mothers and Children, Advent House Inc.,

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Domestic Violence Resource Center of South County, Crossroads Family Shelter, House of Hope

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Community Development Corporation, Community Care Alliance, Women's Resource Center

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Newport County, Warm Shelter Inc., Children's Shelter-Blackstone, Welcome House of South

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County, Women's Resource Center, Amos House, Urban League of RI, Crossroads Rhode Island,

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Providence Rescue Mission; Crossroads RI (Providence); Rhode Island Coalition for the Homeless

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(Pawtucket); Crossroads RI (West Warwick); Crossroads Family Shelter (Seekonk); House of

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Hope Community Development Corporation (Warwick); Lucy's Hearth (Middletown); Holy

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Family Home for Mothers and Children (Providence); Community Care Alliance (Woonsocket);

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Children's Shelter-Blackstone (Pawtucket); Verizon Company Homeless Shelter (Pawtucket);

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Urban League of RI (Providence); Providence Rescue Mission (Providence); Warm Shelter Inc.

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(Westerly); Welcome House of South County (Wakefield); Amos House (Providence); Sojourner

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House Inc. (Providence); East Bay Coalition For Homeless (Riverside); Crossroads Rhode Islands

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(North Kingstown); Rhode Island Family Shelter (Warwick); Tanner House (Providence);

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Blackstone Valley Advocacy Center (Central Falls,); McAuley House (Providence); Camp Street

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Community Ministries (Providence); WARM Center Administration (Westerly); Emmanuel Men

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Shelter (Providence); Domestic Violence Resource Center of South County (Wakefield); Elizabeth

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Buffum Chace Center (Warwick); Women's Resource Center Newport County: Office (Newport);

 

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The Salvation Army of Pawtucket, RI (Pawtucket); YWCA (Woonsocket); Family Resource

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Center (Attleboro); Elizabeth Buffum Chace House (Warwick); Harvest Community Church

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(Woonsocket); Good Neighbors (Riverside); McAuley Village (Providence); Operation Stand

4

Down (Johnston); The Salvation Army of Newport, RI (Newport); St Paul's Church (Pawtucket);

5

Providence In-Town Churches Association (Providence); Women's Resource Center (Warren);

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McAuley Ministries (Providence); Rhode Island Veterans' Home Community Living Center

7

(Providence); Habitat For Humanity of Rhode Island Greater Providence (Providence); St Joseph's

8

Rectory (Newport); YWCA Greater RI (Central Falls); Habitat for Humanity for Rhode Island

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South County (Charlestown); Community Care Alliance (Woonsocket); Cumberland Manor

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(Cumberland); Project Hope (Providence); The Salvation Army of Providence, RI (Providence);

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North American Family Institute (Warwick); Eastbay Community Action Program (Tiverton);

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Church Community Housing Corporation (Newport); Catholic social services (Fall River);

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Rebuilding Together (Providence); North American Family Insurance (Lincoln); Community Care

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Alliance (Woonsocket); Access Emergency Shelter (Danielson); Galilee Mission (Narragansett);

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Always Home (Mystic); Pawtucket Central Falls Development (Pawtucket); North American

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Family Institute (Pawtucket); Community Care Alliance (Woonsocket); North Kingstown Food

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Pantry (North Kingstown); Blackstone Valley Emergency Food Center (Pawtucket); Housing

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Network of Rhode Island (Pawtucket); Parents Without Partners (Providence); Corp For

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Supportive Housing (Providence); Habitat For Humanity-West Bay (Warwick); Operation Stand

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Down (West Warwick); Joe's Sock Fund For Homeless (Attleboro); Neighborworks (Woonsocket);

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Council of Churches (Attleboro);

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     (b) Other similar situated groups and individuals.

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     SECTION 3. This act shall take effect for and on behalf of the state of Rhode Island only

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from and after the passage, approval, ratification, and adoption, by four (4) other states of similar

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legislation. Within ten (10) days of the date that the four (4) states adopt legislation similar to this

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one, the attorney general shall advise the governor, the speaker of the house of representatives, and

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the president of the senate of the effective date of this act.

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LC000590

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LC000590 - Page 11 of 12

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COMMERCIAL LAW -- GENERAL REGULATORY PROVISIONS --

INDECENT DECEPTIVE TRADE PRACTICES, DUTIES OF CARRIERS, COMMUNITY

STANDARDS OF DECENCY, ADULT ENTERTAINMENT ESTABLISHMENTS -- HUMAN

TRAFFICKING AND CHILD EXPLOITATION PREVENTION ACT

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1

     This act would mandate a retailer that manufactures, sells, offers for sale, leases, or

2

distributes an Internet-enabled device to ensure that the product is equipped with an active and

3

operating filter prior to sale that blocks websites that that facilitate prostitution, human trafficking,

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or display child pornography, revenge pornography, or obscene material indecent for minors.

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     This act would take effect on for and on behalf of the state of Rhode Island only from and

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after the passage, approval, ratification, and adoption, by four (4) other states of similar legislation.

7

Within ten (10) days of the date that the four (4) states adopt legislation similar to this one, the

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attorney general would advise the governor, the speaker of the house of representatives, and the

9

president of the senate of the effective date of this act.

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LC000590

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LC000590 - Page 12 of 12