2012 -- S 2647

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LC00306

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO CRIMINAL OFFENSES - COMPUTER CRIME

     Introduced By: Senators Lanzi, Ciccone, DiPalma, and Tassoni

     Date Introduced: March 01, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 11-52-4.2 of the General Laws in Chapter 11-52 entitled

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"Computer Crime" is hereby repealed.

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     11-52-4.2. Cyberstalking and cyberharassment prohibited.

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     (a) Whoever transmits any communication by computer or other electronic device to any

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person or causes any person to be contacted for the sole purpose of harassing that person or his or

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her family is guilty of a misdemeanor, and shall be punished by a fine of not more than five

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hundred dollars ($500), by imprisonment for not more than one year, or both. For the purpose of

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this section, "harassing" means any knowing and willful course of conduct directed at a specific

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person which seriously alarms, annoys, or bothers the person, and which serves no legitimate

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purpose. The course of conduct must be of a kind that would cause a reasonable person to suffer

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substantial emotional distress, or be in fear of bodily injury. "Course of conduct" means a pattern

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of conduct composed of a series of acts over a period of time, evidencing a continuity of purpose.

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Constitutionally protected activity is not included within the meaning of "course of conduct."

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     (b) A second or subsequent conviction under subsection (a) of this section shall be

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deemed a felony punishable by imprisonment for not more than two (2) years, by a fine of not

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more than six thousand dollars ($6,000), or both.

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     SECTION 2. Chapter 11-9 of the General Laws entitled "Children" is hereby amended

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by adding thereto the following section:

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     11-9-1.5. Electronically Disseminating Indecent Material to Minors Prohibited. - (a)

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Definitions. As used in this section:

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     (1) “Minor” means any person not having reached eighteen (18) years of age.

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     (2) “Computer” has the meaning given to that term in section 11-52-1.

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     (3) “Telecommunication device” means an analog or digital electronic device that

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processes data, telephony, video, or sound transmission as part of any system involved in the

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sending and/or receiving at a distance of voice, sound, data, and/or video transmissions.

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     (4) “Indecent visual depiction” means any digital image or digital video depicting one or

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more persons engaging in sexually explicit conduct, and includes; (i) Data stored on any

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computer, telecommunication device, or other electronic storage media that is capable of

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conversion into a visual image; or (ii) Digital video depicting sexually explicit conduct

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transmitted live over a computer online service, Internet service, or local electronic bulletin board

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service.

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     (5) “Sexually explicit conduct” means actual:

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     (i) Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or

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oral-anal, or lascivious sexual intercourse where the genitals or pubic area of any person is

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exhibited;

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     (ii) Bestiality;

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     (iii) Masturbation;

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     (iv) Sadistic or masochistic abuse; or

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     (v) Graphic or lascivious exhibition of the genitals or pubic area of any person.

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     (b) No person shall knowingly and intentionally use a computer or telecommunication

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device to transmit an indecent visual depiction to a person he or she knows is, or believes to be, a

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minor.

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     (c) No minor shall be charged under this section if his or her conduct falls within the

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provisions of section 11-9-1.4, “Minor Electronically Disseminating Indecent Material to Another

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Person – “Sexting” Prohibited.”

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     (d) The fact that an undercover operative or law enforcement officer was involved in the

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detection and investigation of an offense under this section shall not constitute a defense to a

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prosecution under this section.

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     (e) Whoever violates the provisions of this section shall be subject to the sex offender

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registration requirements set forth in section 11-37.1-1 et seq., entitled “Sexual Offender

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Registration and Community Notification Act.”.

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     (f) Whoever violates the provisions of this section shall be guilty of a felony and may be

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imprisoned for not more than five (5) years or fined not more than five thousand dollars ($5,000),

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or both.

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     SECTION 3. Chapter 11-52 of the General Laws entitled “Computer Crime” is hereby

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amended by adding thereto the following sections:

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     11-52-3.1. Unauthorized access to confidential information. – (a) Whoever

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intentionally, without authorization or in excess of one’s authorization, directly or indirectly

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accesses a protected computer, computer program, computer system, or computer network, with

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the intent to either view, obtain, copy, or download any confidential information contained in or

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stored on such computer, computer program, computer system, or computer network, shall be

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guilty of a felony and shall be subject to the penalties set forth in section 11-52-5.

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     (b) Nothing in this section shall apply to any monitoring of, or interaction with, a

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subscriber’s Internet or other network connection or service, or a protected computer, by a

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telecommunications carrier, cable operator, computer hardware or software provider, or provider

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of information service or interactive computer service for network or computer security purposes,

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diagnostics, technical support, repair, advertising, authorized updates of software or system

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firmware, authorized remove system management, providing, operating, or improving a service

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used, requested, or authorized by an individual, or detection or prevention of the unauthorized use

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of or fraudulent or other illegal activities in connection with a network, service, or computer

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software.

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     11-52-4.4. Cyberstalking and cyberharassment prohibited. – (a) Definitions. As used

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in this section:

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     (1) “Conduct” means either: (i) A single act which causes a person to be repeatedly

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contacted by others in a manner which seriously alarms, annoys, or bothers the person; or (ii)

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Two (2) or more acts over a period of time, evidencing a continuity of purpose, which seriously

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alarms, annoys, or bothers the person.

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     (2) “Immediate family” means a spouse, parent, child, or sibling. The term also includes

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any other individual who regularly resides in the household or who within the prior six (6)

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months regularly resided in the household.

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     (3) “Harass” means to engage in intentional conduct that serves no legitimate purpose

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that would cause a reasonable person to suffer substantial emotional distress, or be in fear of

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bodily injury. The term does not include constitutionally protected activity.

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     (4) “Computer” has the meaning given to that term in section 11-52-1.

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     (5) “Telecommunication device” means an analog or digital electronic device that

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processes data, telephony, video, or sound transmission as part of any system involved in the

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sending and/or receiving at a distance of voice, sound, data, and/or video transmissions.

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     (b) Whoever, by computer or telecommunication device, harasses another person or

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causes any person to be contacted for the purpose of harassing that person or his or her immediate

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family is guilty of a misdemeanor, and may be subject to imprisonment for not more than one

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year or fined not more than five hundred dollars ($500), or both.

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     (c) A second or subsequent conviction under subsection (b) of this section shall be

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deemed a felony, subject to imprisonment for not more than two (2) years or a fine of not more

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than six thousand dollars ($6,000), or both.

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     (d) If a person accused under this section claims to have been engaged in constitutionally

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protected activity, the court shall determine the validity of the claim as a matter of law and, if

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found valid, shall exclude evidence of the activity.

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     11-52-7.1 Offense of Online Impersonation. – (a) Definitions. As used in this section:

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     (1) “Commercial social networking site” means a business, organization or other similar

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entity that operates a website and permits persons to become registered users for the purpose of

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establishing personal relationships with other users through direct or real-time communication

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with other users or the creation of web pages or profiles available to the public or to other users.

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     (2) “Electronic mail” means an electronic mail message sent through the use of an

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electronic mail program or a message board program.

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     (3) “Identifying information” means information that alone or in conjunction with other

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information identifies a person, including a person's:

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     (i) Name, social security number, date of birth, or government-issued identification

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number;

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     (ii) Unique biometric data, including the person's fingerprint, voice print or retina or iris

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image;

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     (iii) Unique electronic identification number, electronic mail address, routing code or

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financial institution account number; and

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     (iv) Telecommunication identifying information or access device.

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     (4) “Public official” means a person elected by the public or elected or appointed by a

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governmental body or an appointed official in the executive, legislative, or judicial branch of the

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state or any political subdivision thereof.

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     (b) A person commits the crime of online impersonation if the person:

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     (1) Uses the name or persona of another person to create a web page on or to post one or

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more messages on a commercial social networking site or sends an electronic mail, instant

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message, text message or similar communication without obtaining the other person's consent and

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with the intent to harm, defraud, intimidate or threaten any person;

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     (2) Sends an electronic mail, instant message, text message or similar communication that

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references a name, domain address, telephone number or other item of identifying information

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belonging to any person without obtaining the other person's consent, with the intent to cause a

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recipient of the communication to reasonably believe that the other person authorized or

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transmitted the communication and with the intent to harm or defraud any person; or

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     (3) Uses the name or persona of a public official to create a web page on or to post one or

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more messages on a commercial social networking site or sends an electronic mail, instant

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message, text message or similar communication without obtaining the public official's consent

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and with the intent to induce another to submit to such pretended official authority, to solicit

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funds or otherwise to act in reliance upon that pretense to the other person's detriment.

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     (c) Whoever violates this section shall be guilty of a felony and subject to imprisonment

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for not more than three (3) years, or fined not more than two thousand dollars ($2,000), or both.

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     SECTION 4. Section 11-52-1 of the General Laws in Chapter 11-52 entitled “Computer

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Crime” is hereby amended to read as follows:

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     11-52-1. Definitions. - As used in this chapter:

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     (1) "Access" means to approach, instruct, communicate with, store data in, enter data in,

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retrieve data from, or otherwise make use of any resources of, a computer, computer system, or

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computer network.

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     (2) "Computer" means an electronic, magnetic, optical, hydraulic or organic device or

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group of devices which, pursuant to a computer program, to human instruction, or to permanent

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instructions contained in the device or group of devices, can automatically perform computer

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operations with or on computer data and can communicate the results to another computer or to a

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person. The term "computer" includes any connected or directly related device, equipment, or

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facility which enables the computer to store, retrieve or communicate computer programs,

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computer data or the results of computer operations to or from a person, another computer or

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another device.

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     (3) "Computer data" means any representation of information, knowledge, facts,

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concepts, or instructions which is being prepared or has been prepared and is intended to be

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processed, is being processed, or has been processed in a computer or computer network.

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"Computer data" may be in any form, whether readable only by a computer or only by a human

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or by either, including, but not limited to, computer printouts, magnetic storage media, punched

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cards, or data stored internally in the memory of the computer.

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     (4) "Computer network" means a set of related, remotely connected devices, and any

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communications facilities including more than one computer with the capability to transmit data

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among them through the communications facilities.

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     (5) "Computer operation" means arithmetic, logical, monitoring, storage or retrieval

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functions and any combination of them, and includes, but is not limited to, communication with,

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storage of data to, or retrieval of data from any device or human hand manipulation of electronic

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or magnetic impulses. A "computer operation" for a particular computer may also be any function

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for which that computer was generally designed.

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     (6) "Computer program" means a series of instructions or statements or related data that,

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in actual or modified form, is capable of causing a computer or a computer system to perform

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specified functions in a form acceptable to a computer, which permits the functioning of a

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computer system in a manner designed to provide appropriate products from the computer

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systems.

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     (7) "Computer services" includes computer time or services, data processing services,

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Internet service providers' networks and facilities located in the state or information or data stored

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in connection with them.

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     (8) "Computer software" means a set of computer programs, procedures, and associated

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documentation concerned with the operation of a computer, computer program or computer

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network.

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     (9) "Computer system" means a set of related, connected or unconnected, computer

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equipment, devices, and software.

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     (10) “Confidential Information” means data that is protected from disclosure on the

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protected computer, computer program, computer system or computer network and that the

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computer, computer program, computer system or computer network does not transmit or

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disclose unless initiated by the owner of such protected computer, computer program, computer

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system or computer network.

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      (10)(11) "Data" means any representation of information, knowledge, facts, concepts, or

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instructions which are being prepared or have been prepared and are intended to be entered,

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processed, or stored, are being entered, processed, or stored or have been entered, processed, or

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stored in a computer, computer system, or computer network.

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     (11)(12) "Electronic mail service provider" means any business or organization qualified

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to do business in the state of Rhode Island that provides registered users the ability to send or

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receive electronic mail through equipment located in this state and that is an intermediary in

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sending or receiving electronic mail.

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     (12)(13) "Financial instrument" includes, but is not limited to, any check, draft, warrant,

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money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card

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transaction authorization mechanism, marketable security, or any computerized representation of

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any of these.

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     (13) (14) "Owner" means an owner or lessee of a computer or a computer network or an

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owner, lessee, or licensee of computer data, computer programs, or computer software.

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     (14)(15) "Person" shall include any individual, partnership, association, corporation or

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joint venture.

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     (15)(16) "Property" includes, but is not limited to:

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     (i) Real property;

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     (ii) Computers and computer networks;

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     (iii) Financial instruments, computer data, computer programs, computer software and all

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other personal property regardless of whether they are:

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     (A) Tangible or intangible;

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     (B) In a format readable by humans or by a computer;

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     (C) In transit between computers or within a computer network or between any devices

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which comprise a computer; or

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     (D) Located on any paper or in any device on which it is stored by a computer or by a

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human; and

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     (E) Computer services.

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     (iv) A person "uses" a computer or computer network when he or she:

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     (A) Attempts to cause or causes a computer or computer network to perform or to stop

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performing computer operations;

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     (B) Attempts to cause or causes the withholding or denial of the use of a computer,

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computer network, computer program, computer data or computer software to another user; or

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     (C) Attempts to cause or causes another person to put false information into a computer.

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     (v) A person is "without authority" when: (A) he or she has no right or permission of the

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owner to use a computer, or, he or she uses a computer in a manner exceeding his or her right or

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permission or (B) he or she uses an Internet service e-mail system offered by a Rhode Island

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based Internet service provider in contravention of the authority granted by or in violation of the

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policies set by the Internet service provider.

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     (vi) Transmission of electronic mail from an organization to its members shall not be

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deemed to be unsolicited bulk electronic mail.

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     (16)(17) "Services" includes, but is not limited to, computer time, data processing, and

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storage functions.

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     (18) “Social Network Site” means (i) A service accessible on a world wide web domain

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whose primary purpose is to facilitate online social interaction among groups of members for

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primarily social purposes, and which integrates the following features within the unique profile

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web pages of is registered members:

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     (A) The ability of members, including minors, to post a name or nickname in

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combination with, photographs, multimedia and other personal information about the member on

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the profile web page;

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     (B) The ability for members, including minors, to establish interactive links from their

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profile web pages to one or more profile web pages of other members of the same social

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networking service;

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     (C) The ability for members of, or visitors to, the social networking service to leave

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messages or comments on a member’s profile web page that are visible to all or some visitors to

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that page;

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     (D) The ability of members of, or visitors to, the social networking service to search for

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members according to their age, gender, location, or interests in combination with age; and

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     (E) The ability of members to communicate through an embedded electronic mail feature.

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     (ii) A social networking site does not include:

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     (A) Discrete email, instant message, chat room, message board or other communication

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functionalities; or

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     (B) A service whose primary purpose is the facilitation of commercial transactions

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between its members or visitors.

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     (17)(19) "Source document" means an original document or record which forms the basis

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of every electronic entry put into a computer, computer system, or computer network.

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     SECTION 5. Section 11-64-1 of the General Laws in Chapter 11-64 entitled "Electronic

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Imaging Devices" is hereby amended to read as follows:

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     11-64-1. Definitions. -

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      (1) For the purposes of this section the following definitions apply:

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     (a) "Disseminate" means to make available by any means to any person.

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     (b) "Imaging Device" means any electronic instrument capable of capturing, recording,

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storing or transmitting visual images.

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     (c) "Intimate areas" means the naked or undergarment clad genitals, pubic area, buttocks,

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or any portion of the female breast below the top of the areola of a person which the person

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intended to be protected from public view.

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     (d) "Legal entity" means any partnership, firm, association, corporation or any agent or

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servant thereof.

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     (e) "Publish" means to:

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     (i) Disseminate with the intent that such image or images be made available by any

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means to any person or other legal entity;

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     (ii) Disseminate with the intent such images be sold by another person or legal entity;

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     (iii) Post, present, display, exhibit, circulate, advertise or allow access by any means, so

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as to make an image or images available to the public; or

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     (iv) Disseminate with the intent that an image or images be posted, presented, displayed,

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exhibited, circulated, advertised or made accessible by any means, and to make such images

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available to the public.

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     (f) "Sell" means to disseminate to another person, or to publish, in exchange for

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something of value.

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     (g) “Sexually explicit conduct” means actual:

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     (i) Graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or

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oral-anal, or lascivious sexual intercourse where the genitals, or pubic area of any person is

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exhibited;

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     (ii) Bestiality;

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     (iii) Masturbation; or

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     (iv) Sadistic or masochistic abuse.

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     SECTION 6. Chapter 11-64 of the General Laws entitled “Electronic Imaging Devices”

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is hereby amended by adding thereto the following section:

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     11-64-3. Unauthorized Dissemination of Indecent Material. – (a) A person is guilty of

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unauthorized dissemination of indecent material when such person uses an imaging device to

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capture, record, or store visual images of another person eighteen (18) years of age or older

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engaged in sexually explicit conduct or of the intimate areas of another person, with or without

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that other person's knowledge and consent, under circumstances in which that other person would

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have a reasonable expectation of privacy, and, thereafter, without the consent of the person or all

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persons depicted in the visual image, intentionally disseminates, publishes, or sells such visual

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image or images.

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     (b) Constitutionally protected activity is not subject to the provisions of this section.

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     (c) Whoever violates this section shall not be subject to sex offender registration

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requirements set forth in section 11-37.1-1 et seq., entitled “Sexual Offender Registration and

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Community Notification Act.”

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     (d) Whoever violates this section shall be subject to imprisonment for not more than three

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(3) years or fined not more than five thousand dollars ($5000), or both.

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     SECTION 7. Section 11-37.1-2 of the General Laws in Chapter 11-37.1 entitled “Sexual

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Offender Registration and Community Notification” is hereby amended to read as follows:

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     11-37.1-2. Definitions. -- (a) "Aggravated offense" means and includes offenses

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involving sexual penetration of victims of any age through the use of force or the threat of use of

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force or offenses involving sexual penetration of victims who are fourteen (14) years of age or

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under.

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      (b) "Board", "board of review", or "sex offender board of review" means the sex

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offender board of review appointed by governor pursuant to section 11-37.1-6.

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      (c) (1) "Conviction" or "convicted" means and includes any instance where:

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      (i) A judgment of conviction has been entered against any person for any offense

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specified in subsection (e) or (k) of this section, regardless of whether an appeal is pending; or

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      (ii) There has been a finding of guilty for any offense specified in subsection (e) or (k) of

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this section, regardless of whether an appeal is pending; or

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      (iii) There has been a plea of guilty or nolo contendere for any offense specified in

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subsection (e) or (k) of this section, regardless of whether an appeal is pending; or

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      (iv) There has been an admission of sufficient facts or a finding of delinquency for any

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offense specified in subsection (e) or (k) of this section, regardless of whether or not an appeal is

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pending.

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      (2) Provided, in the event that a conviction, as defined in this subsection, has been

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overturned, reversed, or otherwise vacated, the person who was the subject of the conviction shall

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no longer be required to register as required by this chapter and any records of a registration shall

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be destroyed. Provided, further that nothing in this section shall be construed to eliminate a

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registration requirement of a person who is again convicted of an offense for which registration is

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required by this chapter.

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      (d) [Deleted by P.L. 2003, ch. 162, section 1 and by P.L. 2003, ch. 170, section].

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      (e) "Criminal offense against a victim who is a minor" means and includes any of the

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following offenses or any offense in another jurisdiction which is substantially the equivalent of

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the following or for which the person is or would be required to register under 42 U.S.C. section

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14071 or 18 U.S.C. section 4042(c):

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      (1) Kidnapping or false imprisonment of a minor, in violation of section 11-26-1.4, 11-

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26-1 or 11-26-2, where the victim of the offense is sixteen (16) years of age or older and under

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the age of eighteen (18) years;

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      (2) Enticement of a child in violation of section 11-26-1.5 with the intent to violate

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sections 11-37-6, 11-37-8, 11-37-8.1, 11-37-8.3;

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      (3) Any violation of section 11-37-6, 11-37-8, 11-37-8.1, or 11-37-8.3;

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      (4) Any violation of section 11-1-10, where the underlying offense is a violation of

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chapter 34 of this title and the victim or person solicited to commit the offense is under the age of

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eighteen (18) years;

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      (5) Any violation of section 11-9-1(b) or (c); or

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      (6) Any violation of section 11-9-1.3 and/or section 11-9-1.5;

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      (7) Any violation of section 11-37.1-10;

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      (8) Any violation of section 11-37-8.8;

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      (9) Any violation of section 11-64-2 where the victim is under the age of eighteen (18)

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years; or

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      (10) Murder in violation of section 11-23-1 where the murder was committed in the

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perpetration of, or attempted perpetration of, kidnapping and where the victim of the offense is

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under eighteen (18) years of age.

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      (f) "Designated state law enforcement agency" means the attorney general or his or her

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designee.

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      (g) "Employed, carries on a vocation" means and includes the definition of "employed,

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carries on a vocation" under 42 U.S.C. section 14071.

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      (h) "Institutions of higher education" means any university, two (2) or four (4) year

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college or community college.

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      (i) "Mental abnormality" means a congenital or acquired condition of a person that

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affects the emotional or volitional capacity of the person in a manner that predisposes that person

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to the commission of criminal sexual acts to a degree that makes the person a menace to the

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health and safety of other persons.

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      (j) "Predator" means a person whose act(s) is (are) or was (were) directed at a stranger,

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or at a person with whom a relationship has been established or promoted for the primary purpose

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of victimization.

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      (k) "Sexually violent offense" means and includes any violation of section 11-37-2, 11-

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37-4, 11-37-6, 11-37-8, 11-37-8.1, 11-37-8.3, or 11-5-1 where the specified felony is sexual

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assault, or section 11-23-1 where the murder was committed in the perpetration of, or attempted

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perpetration of, rape or any degree of sexual assault or child molestation, or any offense in

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another jurisdiction which is substantially the equivalent of any offense listed in this subsection or

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for which the person is or would be required to register under 42 U.S.C. section 14071 or 18

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U.S.C. section 4042(c).

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      (l) "Sexually violent predator" means a person who has been convicted of a sexually

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violent offense and who has a mental abnormality or personality disorder that makes the person

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likely to engage in predatory sexually violent offenses.

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      (m) "Student" means and includes the definition of "student" under 42 U.S.C. section

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14071.

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      (n) "Parole board" means the parole board or its designee.

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     SECTION 8. Nothing in this act may be construed to provide a basis for a private right

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of action against an interactive computer service, as defined in 47 U.S.C. § 230, or a

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telecommunications carrier as used by another person to violate this act, for content provided by

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such person or by another information content provider.

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     SECTION 9. This act shall take effect upon passage.

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LC00306

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL OFFENSES - COMPUTER CRIME

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     This act would amend various chapters and provisions of the general laws to create to

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additional offenses relating to Internet activity.

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     This act would take effect upon passage.

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LC00306

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