MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representatives Yancey, Eubanks
AN ACT TO REGULATE PORNOGRAPHIC MEDIA EXPOSURE TO CHILDREN IN K-12; TO REGULATE DIGITAL AND ONLINE RESOURCES PROVIDED BY K-12 VENDORS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 37-11-81, Mississippi Code of 1972:
37-11-81. (1) The state, or any of its agencies, a school district, charter school, the Mississippi School of the Arts, the Mississippi School for Mathematics and Science, the Mississippi Virtual Public School, the Mississippi School for the Deaf or the Mississippi School for the Blind (hereafter, "the contracting party") may offer digital or online resources or databases to students in kindergarten through twelfth grade only if the vendor or other person or entity providing the resources verifies that all the resources will comply with the provisions of subsection (2) of this section.
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a person from sending, receiving, viewing or downloading materials that are:
(i) Child pornography;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials, as defined in this act;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Block, or otherwise prohibit and prevent, access to obscene materials, inappropriate materials, materials that are sexually oriented or materials that depict, describe or promote child pornography or child sexual exploitation.
(c) For the purposes of this act, material is obscene, if:
(i) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and
(ii) The material taken as a whole lacks serious literary, artistic, political or scientific value; and
(iii) The material depicts or describes in a patently offensive way, sexual contact specifically defined in items 1 through 5 below:
1. Acts of sexual intercourse of any kind, normal or perverted, actual or simulated;
2. Acts of masturbation;
3. Acts involving excretory functions or lewd exhibition of the genitals;
4. Acts of bestiality or the fondling of sex organs of animals; or
5. Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.
(3) (a) The provisions of this section shall take precedence over any other provision of law to the contrary in a contract between the contracting party and a vendor or other person or entity providing digital or online resources or databases. Notwithstanding any other provision of law to the contrary, in a contract between the contracting party and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the contracting party shall withhold further payments, if any, to the provider pending verification of compliance.
(b) No Internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated the provisions of this act solely for providing services that do not constitute the direct provision of digital or online resources or databases to students in kindergarten through twelfth grade.
(c) The provisions of this section do not apply to the use of digital or online resources or databases by a student enrolled in a Mississippi institution of higher education or a Mississippi community or junior college, including dual-enrolled students.
(d) Upon a first uncured occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with this section, the contracting party shall consider the provider's noncompliance to be a breach of contract.
(e) Upon a second uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contracting party is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the contracting party such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(f) Upon a third uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the contracting party is entitled to a complete refund of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall withhold any future payments that may be due to the provider, and the provider must return to the contracting party all amounts previously paid to the provider under the contract.
(4) The Attorney General may investigate compliance with this section. The contracting party must report to the Attorney General a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the contracting party learns of the provider's noncompliance. Such a report shall constitute a public record under the Mississippi Public Records Act.
SECTION 2. The following shall be codified as Section 39-3-25, Mississippi Code of 1972:
39-3-25. (1) The state, or any of its agencies, or a public library (hereafter, "the contracting party") may offer digital or online resources or databases to minors only if the vendor or other person or entity providing the resources verifies that all the resources will comply with the provisions of subsection (2) of this section. For purposes of this section, the term "minor" means any person under the age of eighteen (18).
(2) A vendor or other person or entity providing digital or online resources or databases under the authority of this section must have safety policies and technology protection measures that:
(a) Prohibit and prevent a minor from sending, receiving, viewing or downloading materials that are:
(i) Child pornography;
(ii) Materials that depict or promote child sexual exploitation or trafficking;
(iii) Obscene materials, as defined in this act;
(iv) Inappropriate materials depicting or dealing with matters of sex, cruelty and violence in a manner likely to be injurious or harmful to a child; or
(v) Materials that are sexually oriented, as defined in Section 97-5-27(2); and
(b) Block, or otherwise prohibit and prevent, a minor from accessing obscene materials, inappropriate materials, materials that are sexually oriented or materials that depict, describe or promote child pornography or child sexual exploitation.
(3) (a) The provisions of this section take precedence over any provision in a contract between the contracting party and a vendor or other person or entity providing digital or online resources or databases to the contrary. Notwithstanding any provision in a contract between the contracting party and a provider to the contrary, if a provider of digital or online resources or databases fails to comply with the requirements of this section, the contracting party shall withhold further payments, if any, to the provider pending verification of compliance.
(b) No Internet service provider, or its affiliates or subsidiaries, search engine, or cloud service provider shall be held to have violated the provisions of this act solely for providing services that do not constitute the direct provision of digital or online resources or databases to minors.
(c) The provisions of this section do not apply to the use of digital or online resources or databases by a student enrolled in a Mississippi institution of higher education or a Mississippi community or junior college, including dual-enrolled students.
(d) Upon a first uncured occurrence by a provider of digital or online resources or databases of noncompliance with subsection (2) of this section and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with this section, the contracting party shall consider the provider's noncompliance to be a breach of contract.
(e) Upon a second uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contracting party is entitled to a reduction in the amount of ten percent (10%) of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall adjust any future payments due to the provider under the contract accordingly to effectuate the ten percent (10%) reduction. However, if the contract price has been paid in full, or if the balance owed on the contract price is equal to less than ten percent (10%) of the contract price, the provider must return to the contracting party such amount that is required to effectuate a ten percent (10%) reduction of the contract price.
(f) Upon a third uncured occurrence by a provider of noncompliance with subsection (2) and failure to verify within thirty (30) days of receiving notice of the noncompliance from the contracting party that the provider is in compliance with the requirements of this section, the contract must be considered terminated and the contracting party is entitled to a complete refund of the agreed upon price in the contract to be paid by the contracting party to the provider. The contracting party shall withhold any future payments that may be due to the provider, and the provider must return to the contracting party all amounts previously paid to the provider under the contract.
(4) Prior to withholding any payment for noncompliance under this act, any contracting party must provide to the database vendor:
(i) Written notice of the nature of the violation, including reasonable identification of the prohibited material and the manner of its access.
(ii) Thirty (30) days to present evidence that the acts alleged to constitute a violation are not a breach of the provider's obligation.
(iii) Thirty (30) days to cure any occurrence of noncompliance.
(iv) After having exhausted the administrative remedies referenced in subparagraphs (i) – (iii), the opportunity to tender the disputed contract funds into the registry of a court of competent jurisdiction and to seek a judicial determination of the rights under the contract.
(5) The Attorney General may investigate compliance with this section. The contracting party must report to the Attorney General a provider's failure to comply with subsection (2) of this section no later than thirty (30) days after the contracting party learns of the provider's noncompliance. Such a report shall constitute a public record under the Mississippi Public Records Act.
SECTION 3. If any section, paragraph, sentence, clause, phrase or any part of this act passed on or after the effective date of this act is declared to be unconstitutional or void, or if for any reason is declared to be invalid or of no effect, the remaining sections, paragraphs, sentences, clauses, phrases or parts of this act shall be in no manner affected thereby but shall remain in full force and effect.
Unless the contrary intent shall clearly appear in the particular act in question, each and every act passed hereafter shall be read and construed as though the provisions of the first paragraph of this section form an integral part thereof, whether expressly set out therein or not.
SECTION 4. This act shall take effect and be in force from and after July 1, 2023.