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Child Pornography Reporting Requirements

Child Pornography Reporting Requirements for Computer Technicians and Information Technology Workers

As of Sept. 12, 2013

At least ten states--Arkansas, California, Illinois, Missouri, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota and Texas--have enacted laws requiring computer technicians or information technology workers to report child pornography if they encounter it in the scope of their work. The laws don't require technicians or service providers to search for the illegal material, only to report it if they find it. Similar laws apply to film developers who encounter child pornography on the job. Michigan law provides confidentiality and immunity from civil liability for computer technicians who report child pornography encountered in the scope of their work. (See statutory excerpts below.)

Critics charge that this type of law unfairly transfers law enforcement duties to individuals who may not be qualified to handle evidence or determine what constitutes child pornography. Supporters say reporting mandates for photo labs have proven effective, and that similar laws for IT workers will help combat child pornography on the Internet.

PLEASE NOTE:  The National Conference of State Legislatures (NCSL) serves state legislators and their staff. This site provides comparative information only and should not be construed as legal advice. NCSL cannot provide assistance with individual cases.


State Statutes (Excerpts)

Arkansas

Ark. Code § 5-27-604.
Failure to report computer child pornography.
(a) A person commits failure to report computer child pornography if the person:
(1) Is the owner, operator, or employee of a computer on-line service, Internet service, or bulletin board service; and
(2) The person knowingly fails to notify law enforcement officials that a subscriber is using the service to commit a violation of § 5-27-603
(b) Failure to report computer child pornography is a Class A misdemeanor.
 

California

2012 A.B. 1817, Chapter 521 (Calif. Penal Code 11165.7)
11165.7 (41) (A) A commercial computer technician as specified in subdivision (e) of Section 11166. As used in this article, “commercial computer technician” means a person who works for a company that is in the business of repairing, installing, or otherwise servicing a computer or computer component, including, but not limited to, a computer part, device, memory storage or recording mechanism, auxiliary storage recording or memory capacity, or any other material relating to the operation and maintenance of a computer or computer network system, for a fee. An employer who provides an electronic communications service or a remote computing service to the public shall be deemed to comply with this article if that employer complies with Section 2258A of Title 18 of the United States Code.
(B) An employer of a commercial computer technician may implement internal procedures for facilitating reporting consistent with this article. These procedures may direct employees who are mandated reporters under this paragraph to report materials described in subdivision (e) of Section 11166 to an employee who is designated by the employer to receive the reports. An employee who is designated to receive reports under this subparagraph shall be a commercial computer technician for purposes of this article. A commercial computer technician who makes a report to the designated employee pursuant to this subparagraph shall be deemed to have complied with the requirements of this article and shall be subject to the
protections afforded to mandated reporters, including, but not limited to, those protections afforded by Section 11172.
...
11165.7(43) (A) A commercial computer technician as specified in subdivision (e) of Section 11166. As used in this article, “commercial computer technician” means a person who works for a company that is in the business of repairing, installing, or otherwise servicing a computer or computer component, including, but not limited to, a computer part, device, memory storage or recording mechanism, auxiliary storage recording or memory capacity, or any other material relating to the operation and maintenance of a computer or computer network system, for a fee. An employer who provides an electronic communications service or a remote computing service to the public shall be deemed to comply with this article if that employer complies with Section 2258A of Title 18 of the United States Code.

(B) An employer of a commercial computer technician may implement internal procedures for facilitating reporting consistent with this article. These procedures may direct employees who are mandated reporters under this paragraph to report materials described in subdivision (e) of Section 11166 to an employee who is designated by the employer to receive the reports. An employee who is designated to receive reports under this subparagraph shall be a commercial computer technician for purposes of this article. A commercial computer technician who makes a report to the designated employee pursuant to this subparagraph shall be deemed to have complied with the requirements of this article and shall be subject to the protections afforded to mandated reporters, including, but not limited to, those protections afforded by Section 11172.

 


Illinois

325 ILCS 5/4.5
Sec. 4.5. Electronic and information technology workers; reporting child pornography.
    (a) In this Section:
    "Child pornography" means child pornography as described in Section 11-20.1 of the Criminal Code of 1961 or aggravated child pornography as described in Section 11-20.1B of the Criminal Code of 1961.
    "Electronic and information technology equipment" means equipment used in the creation, manipulation, storage, display, or transmission of data, including internet and intranet systems, software applications, operating systems, video and multimedia, telecommunications products, kiosks, information transaction machines, copiers, printers, and desktop and portable computers.
    "Electronic and information technology equipment worker" means a person who in the scope and course of his or her employment or business installs, repairs, or otherwise services electronic and information technology equipment for a fee but does not include (i) an employee, independent contractor, or other agent of a telecommunications carrier or telephone or telecommunications cooperative, as those terms are defined in the Public Utilities Act, or (ii) an employee, independent contractor, or other agent of a provider of commercial mobile radio service, as defined in 47 C.F.R. 20.3.
    (b) If an electronic and information technology equipment worker discovers any depiction of child pornography while installing, repairing, or otherwise servicing an item of electronic and information technology equipment, that worker or the worker's employer shall immediately report the discovery to the local law enforcement agency or to the Cyber Tipline at the National Center for Missing & Exploited Children.
    (c) If a report is filed in accordance with the requirements of 42 U.S.C. 13032, the requirements of this Section 4.5 will be deemed to have been met.
    (d) An electronic and information technology equipment worker or electronic and information technology equipment worker's employer who reports a discovery of child pornography as required under this Section is immune from any criminal, civil, or administrative liability in connection with making the report, except for willful or wanton misconduct.
    (e) Failure to report a discovery of child pornography as required under this Section is a business offense subject to a fine of $1,001.

720 ILCS 5/11-20.2
Duty of commercial film and photographic print processors or computer technicians to report sexual depiction of children
   Sec. 11-20.2. Duty of commercial film and photographic print processors or computer technicians to report sexual depiction of children. (a) Any commercial film and photographic print processor or computer technician who has knowledge of or observes, within the scope of his professional capacity or employment, any film, photograph, videotape, negative, slide, computer hard drive or any other magnetic or optical media which depicts a child whom the processor or computer technician knows or reasonably should know to be under the age of 18 where such child is:
...
shall report or cause a report to be made pursuant to subsections (b) and (c) as soon as reasonably possible. Failure to make such report shall be a business offense with a fine of $ 1,000.

(b) Commercial film and photographic film processors shall report or cause a report to be made to the local law enforcement agency of the jurisdiction in which the image or images described in subsection (a) are discovered.

(c) Computer technicians shall report or cause the report to be made to the local law enforcement agency of the jurisdiction in which the image or images described in subsection (a) are discovered or to the Illinois Child Exploitation e-Tipline at reportchildporn@atg.state.il.us.

(d) Reports required by this Act shall include the following information: (i) name, address, and telephone number of the person filing the report; (ii) the employer of the person filing the report, if any; (iii) the name, address and telephone number of the person whose property is the subject of the report, if known; (iv) the circumstances which led to the filing of the report, including a description of the reported content.

(e) If a report is filed with the Cyber Tipline at the National Center for Missing and Exploited Children or in accordance with the requirements of 42 U.S.C. 13032, the requirements of this Act will be deemed to have been met.

(f) A computer technician or an employer caused to report child pornography under this Section is immune from any criminal, civil, or administrative liability in connection with making the report, except for willful or wanton misconduct.

(g) For the purposes of this Section, a "computer technician" is a person who installs, maintains, troubleshoots, repairs or upgrades computer hardware, software, computer networks, peripheral equipment, electronic mail systems, or provides user assistance for any of the aforementioned tasks.

Michigan

Mich. Comp. Laws § 750.145c (9).
Definitions; child sexually abusive activity or material; penalties; possession of child sexually abusive material; expert testimony; defenses; acts of commercial film or photographic print processor; report to law enforcement agency by computer technician; applicability and uniformity of section; enactment or enforcement of ordinances, rules, or regulations prohibited.

... (9) If a computer technician reports to a law enforcement agency having jurisdiction his or her knowledge or observation, within the scope of his or her professional capacity or employment, of an electronic visual image, computer-generated image or picture or sound recording depicting a person that the computer technician has reason to know or reason to believe is a child engaged in a listed sexual act; furnishes a copy of that image, picture, or sound recording to the law enforcement agency; or keeps the image, picture, or sound recording according to the law enforcement agency's instructions, both of the following shall apply:

(a) The identity of the computer technician shall be confidential, subject to disclosure only with his or her consent or by judicial process.

(b) If the computer technician acted in good faith, he or she shall be immune from civil liability that might otherwise be incurred by his or her actions. This immunity extends only to acts described in this subsection.

 Missouri

Mo. Rev. Stat. § 568.110.
Professional's duty to report on film, photographs, videotapes, failure to report, penalty--exceptions.

1. Any film and photographic print processor, computer provider, installer or repair person, or any Internet service provider who has knowledge of or observes, within the scope of the person's professional capacity or employment, any film, photograph, videotape, negative, slide, or computer-generated image or picture depicting a child under the age of eighteen years engaged in an act of sexual conduct shall report such instance to the law enforcement agency having jurisdiction over the case immediately or as soon as practically possible.

2. Failure to make such report shall be a class B misdemeanor.

3. Nothing in this section shall be construed to require a provider of electronic communication services or remote computing services to monitor any user, subscriber or customer of the provider, or the content of any communication of any user, subscriber or customer of the provider.

North Carolina

N.C. Gen. Stat. § 66-67.4.  Film and photographic print processor or computer technician to report film or computer images containing pictures of a minor engaging in sexual activity.
(a)       As used in this section:
(1)       "Computer technician" means any person who repairs, installs, or otherwise services any computer or computer network or system for compensation.
(2)       "Processor of photographic images" means any person who, for compensation: (i) develops exposed photographic film into negatives, slides, or prints; (ii) makes prints from negatives, slides, digital images, or video; or (iii) develops, processes, transfers, edits, or enhances video or digital images.
(3)       "Minor" has the same meaning as in G.S. 14-190.13.
(4)       "Sexual activity" has the same meaning as in G.S. 14-190.13.
(b)       Any processor of photographic images or any computer technician who, within the person's scope of employment, observes an image of a minor or a person who reasonably appears to be a minor engaging in sexual activity shall report the name and address of the person requesting the processing of the film or photographs or the owner or person in possession of the computer or computer network or system to the Cyber Tip Line at the National Center for Missing and Exploited Children or to the appropriate law enforcement official in the county or municipality in which the image or film was submitted.
(c)       An employee of a processor of photographic images or computer technician may satisfy the requirements of this section by reporting the required information to a person designated by the employer. The person designated by the employer shall then report as required by subsection (b) of this section.
(d)       Any person, their employer, or a third party complying with this section in good faith shall be immune from any civil or criminal liability that might otherwise be incurred as a result of the report. In any proceeding involving liability, good faith is presumed

Oklahoma

Okla. Stat. tit. 21 § 1021.4 
Disclosure of obscene materials containing minors.
A.  Any commercial film and photographic print processor or commercial computer technician who has knowledge of or observes, within the scope of such person’s professional capacity or employment, any film, photograph, video tape, negative, or slide, or any computer file, recording, CD-Rom, magnetic disk memory, magnetic tape memory, picture, graphic or image that is intentionally saved, transmitted or organized on hardware or any other media including, but not limited to, CDs, DVDs and thumbdrives, whether digital, analog or other means and whether directly viewable, compressed or encoded depicting a child under the age of eighteen (18) years engaged in an act of sexual conduct as defined in Section 1024.1 of this title shall immediately or as soon as possible report by telephone such instance of suspected child abuse or child pornography to the law enforcement agency having jurisdiction over the case and shall prepare and send a written report of the incident with an attached copy of such material, within thirty-six (36) hours after receiving the information concerning the incident.

For the purposes of this section:
1.  “Commercial film and photographic print processor” means any person who develops exposed photographic film into negatives, slides, or prints, or who makes prints from negatives or slides, for compensation.  The term shall also include any employee of such a person but shall not include a person who develops film or makes prints for a public agency; and

2.  “Commercial computer technician” means any person who repairs, installs, or otherwise services any computer including, but not limited to, any component part, device, memory storage or recording mechanism, auxiliary storage, recording or memory capacity, or any other materials relating to operation and maintenance of a computer or computer network or system, for compensation.  The term shall also include any employee of such person.
B. Any person who violates the provisions of this section, upon conviction, shall be guilty of a misdemeanor and shall be punished by the imposition of a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail not to exceed one (1) year, or both such fine and imprisonment.
C.  Nothing in this section shall be construed to require or authorize any person to act outside the scope of such person’s professional capacity or employment by searching for prohibited materials or media.

Oregon

Ore. Rev. Stat.§ 163.693
Failure to report child pornography. (1) As used in this section:
      (a) “Computer technician” means a person who repairs, installs or otherwise services a computer, computer network or computer system for compensation.
      (b) “Processor of photographic images” means a person who develops, processes, reproduces, transfers, edits or enhances photographic film into negatives, slides, prints, movies, digital images or video.
      (2) A processor of photographic images or a computer technician who reasonably believes the processor or technician has observed a visual recording of a child involved in sexually explicit conduct shall report the name and address, if known, of the person requesting the processing or of the owner or person in possession of the computer, computer network or computer system to:
      (a) The CyberTipline at the National Center for Missing and Exploited children;
      (b) The local office of the Department of Human Services; or
      (c) A law enforcement agency within the county where the processor or technician making the report is located at the time the visual recording is observed.
      (3) Nothing in this section requires a processor of photographic images or a computer technician to monitor any user, subscriber or customer or to search for prohibited materials or media.
      (4) Any person, their employer or a third party complying with this section in good faith shall be immune from civil or criminal liability in connection with making the report, except for willful or wanton misconduct.
      (5) A person commits the crime of failure to report child pornography if the person violates the provisions of this section.
      (6) Failure to report child pornography is a Class A misdemeanor. [1987 c.864 §7; 1991 c.664 §10; 2011 c.515 §§8,11a]
 
163.690 Lack of knowledge of age of child as affirmative defense. It is an affirmative defense to any prosecution under ORS 163.684, 163.686, 163.687 or 163.693 that the defendant, at the time of engaging in the conduct prohibited therein, did not know and did not have reason to know that the relevant sexually explicit conduct involved a child. [1985 c.557 §7; 1987 c.864 §13; 1991 c.664 §9; 1995 c.768 §7]

163.682 Exceptions to ORS 163.665 to 163.693. The provisions of ORS 163.665 to 163.693 do not apply to:
      (1) Any legitimate medical procedure performed by or under the direction of a person licensed to provide medical services for the purpose of medical diagnosis or treatment, including the recording of medical procedures;
      (2) Any activity undertaken in the course of bona fide law enforcement activity or necessary to the proper functioning of the criminal justice system, except that this exception shall not apply to any activity prohibited by ORS 163.670;
      (3) Any bona fide educational activity, including studies and lectures, in the fields of medicine, psychotherapy, sociology or criminology, except that this exception shall not apply to any activity prohibited by ORS 163.670;
      (4) Obtaining, viewing or possessing a visual recording as part of a bona fide treatment program for sexual offenders; or
      (5) A public library, as defined in ORS 357.400, or a library exempt from taxation under ORS 307.090 or 307.130, except that these exceptions do not apply to any activity prohibited by ORS 163.670. [1991 c.664 §3; 2011 c.515 §9]

South Carolina

S.C. Code, § 16-3-850.
Film processor or computer technician to report film or computer images containing sexually explicit pictures of minors.

Any retail or wholesale film processor or photo finisher who is requested to develop film, and any computer technician working with a computer who views an image of a child younger than eighteen years of age or appearing to be younger than eighteen years of age who is engaging in sexual conduct, sexual performance, or a sexually explicit posture must report the name and address of the individual requesting the development of the film, or of the owner or person in possession of the computer to law enforcement officials in the state and county or municipality from which the film was originally forwarded. Compliance with this section does not give rise to any civil liability on the part of anyone making the report.

South Dakota

S.D. Codified Laws § 22-22-24.18.
Computer repair technicians to report suspected violations of child pornography laws - Penalty.
Any commercial computer repair technician who has knowledge of or observes, within the scope of the technician's professional capacity or employment, a film, photograph, video tape, negative, slide or other visual depiction of a minor whom the technician knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to an appropriate law enforcement agency as soon as reasonably possible. The computer repair technician need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a computer repair technician to review all data, disks, or tapes delivered to the computer repair technician within the computer repair technician's professional capacity or employment.
 commercial computer repair technician who has knowledge of or observes, within the scope of the technician's professional capacity or employment, a film, photograph, video tape, negative, slide or other visual depiction of a minor whom the technician knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to an appropriate law enforcement agency as soon as reasonably possible. The computer repair technician need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a computer repair technician to review all data, disks, or tapes delivered to the computer repair technician within the computer repair technician's professional capacity or employment.

A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not constitute grounds for a civil action for damages against any person.
 

Texas

Texas Business & Commerce Code, § 109.001
CHAPTER 109.  COMPUTER TECHNICIANS REQUIRED TO REPORT CHILD PORNOGRAPHY (2013 H.B. 2539)
Sec. 109.001.  DEFINITIONS.  In this chapter:
(1)  "Child pornography" means an image of a child engaging in sexual conduct or sexual performance.
(2)  "Commercial mobile service provider" has the meaning assigned by Section 64.201, Utilities Code.
(3)  "Computer technician" means an individual who in the course and scope of employment or business installs, repairs, or otherwise services a computer for a fee.
(4)  "Information service provider" includes an Internet service provider and hosting service provider.
(5)  "Sexual conduct" and "sexual performance" have the meanings assigned by Section 43.25, Penal Code.
(6)  "Telecommunications provider" has the meaning assigned by Section 51.002, Utilities Code.
Sec. 109.002.  REPORTING OF IMAGES OF CHILD PORNOGRAPHY.  (a)  A computer technician who, in the course and scope of employment or business, views an image on a computer that is or appears to be child pornography shall immediately report the discovery of the image to a local or state law enforcement agency or the Cyber Tipline at the National Center for Missing and Exploited Children.  The report must include the name and address of the owner or person claiming a right to possession of the computer, if known, and as permitted by federal law.
(b)  Except in a case of wilful or wanton misconduct, a computer technician may not be held liable in a civil action for reporting or failing to report the discovery of an image under Subsection (a).
(c)  A telecommunications provider, commercial mobile service provider, or information service provider may not be held liable under this chapter for the failure to report child pornography that is transmitted or stored by a user of the service.
Sec. 109.003.  CRIMINAL PENALTY.  (a)  A person who intentionally fails to report an image in violation of this chapter commits an offense.  An offense under this subsection is a Class B misdemeanor.
(b)  It is a defense to prosecution under this section that the actor did not report the discovery of an image of child pornography because the child in the image appeared to be at least 18 years of age.

PLEASE NOTE:  The National Conference of State Legislatures (NCSL) serves state legislators and their staff. This site provides comparative information only and should not be construed as legal advice. NCSL cannot provide assistance with individual cases.

NCSL contact for additional information: Pam Greenberg, NCSL Denver Office.

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