The Texas state legislature has now passed House Bill No. 1181 “relating to restricting access to sexual material harmful to minors”.
The Bill requires that a commercial entity that knowingly and intentionally publishes or distributes such material on a website, including a social media platform, uses reasonable age verification methods to verify that an individual attempting to access the material is 18 years of age or older.
The law applies only where the more than one-third of the content of the website is sexual material harmful to minors.
Users must be required to provide digital identification or comply with a commercial age verification system that verifies age using either:
(A) government-issued identification; or
(B) a commercially reasonable method that relies on public or private transactional data to verify the age of an individual.
“Digital identification” is defined quite broadly as ‘information stored on a digital network that may be accessed by a commercial entity and that serves as proof of the identity of an individual’;
“Transactional data” is more narrowly defined as ‘a sequence of information that documents an exchange, agreement, or transfer between an individual, commercial entity, or third party used for the purpose of satisfying a request or event’. The Bill cites records from mortgage, education, and employment entities as examples.
Whether the age checks are done by the website or a third-party provider, neither is allowed to retain any identifying information for the user.
Exceptions are provided for news organisations, internet service providers, search engines or cloud storage services.
If the State Attorney General decides it is in the public interest, a Texas court can be asked to impose a penalty of $10,000 per day that the entity either operates in violation of the age verification requirements or retains personal identifying information.
An additional fine of up to $250,000 if it can be shown that one or more minors accesses sexual material as a result.
If signed by the Governor, the Act takes effect September 1, 2023