HB1219: establishing penalties for transmission or distribution of obscene electronic mail.

HB 1219-FN - AS INTRODUCED

2003 SESSION

03-2020

04/01

HOUSE BILL 1219-FN

AN ACT establishing penalties for transmission or distribution of obscene electronic mail.

SPONSORS: Rep. Cady, Rock 73; Rep. Reeves, Hills 49; Rep. Langley, Rock 88; Rep. Souza, Hills 51; Rep. Ahern, Belk 29

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill establishes penalties for the unsolicited transmission or distribution of obscene electronic mail.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2020

04/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT establishing penalties for transmission or distribution of obscene electronic mail.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Paragraph; Obscene Matter; Offenses. Amend RSA 650:2 by inserting after paragraph III the following new paragraph:

IV.(a) A person shall be guilty of a class B felony if he or she commits obscenity when he or she knowingly and by means of the transmission or distribution of unsolicited electronic mail of any kind:

(1) Sells, delivers, provides, offers, or agrees to sell, deliver, provide, or offer any obscene material; or

(2) Publishes, exhibits, or otherwise makes available any obscene material; or

(3) Possesses any obscene material for purposes of sale or other commercial dissemination; or

(4) Sells, advertises, or otherwise commercially disseminates material, whether or not obscene, by representing or suggesting that it is obscene.

(b) It shall be a class B felony for any owner or operator of a computer on-line service, Internet service, local bulletin board service, or electronic mail service of any kind to knowingly permit a subscriber to utilize the service to commit a violation of this paragraph.

(c) Any out-of-state computer service company doing business in New Hampshire which receives a subpoena from the state of New Hampshire resulting from an investigation of a violation of this paragraph shall respond to such subpoena within 14 days. Failure to respond may result in the suspension or revocation of such company's right to do business in New Hampshire.

2 Effective Date. This act shall take effect January 1, 2005.

LBAO

03-2020

9/22/03

HB 1219-FN - FISCAL NOTE

AN ACT establishing penalties for transmission or distribution of obscene electronic mail.

FISCAL IMPACT:

The Judicial Branch, Judicial Council and Department of Corrections have determined this bill may increase state expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on county and local expenditures or state, county and local revenue.

METHODOLOGY:

The Judicial Branch stated this bill adds RSA 650:2,IV to the obscene matter law, making it a class B felony to do a prohibited act involving obscene material "by means of the transmission or distribution of unsolicited electronic mail of any kind." The existing offenses under the obscene matter act are either felonies or misdemeanors. The Judicial Branch has no information on which to estimate how many additional cases this bill could add. In the past five years, the superior court has prosecuted five defendants under the statute, an average of one a year. The district courts have seen fourteen charges in that time period, or an average of less than three a year. If that is the pace of prosecution under this bill, the fiscal impact will be minimal. On the other hand, e-mail and obscenity has become an important issue. If the prosecution under this bill is aggressively pursued, a greater impact could result. A felony offense can involve arraignment, bail, a probable cause hearing in the district court, numerous hearings and a jury trial in the superior court, and an appeal to the supreme court. If this proposed new crime is aggressively prosecuted, a fiscal impact to the judicial branch in excess of $10,000 will result.

The Judicial Council stated the fiscal impact of this legislation on indigent defense cost will lie with the individual who by means of transmission or distribution commits any of the act detailed. It is assumed that the individual charged has been determined to be indigent at which time the court will proceed to appoint an attorney to represent the defendant. If a public defender or contract attorney is appointed to the case, the fixed contract rate of $250 will apply to each case so charged. If an assigned counsel attorney must be used, due to either conflict of interest or for reason of caseload limitations, the $60 per hour rate will apply to the case, with a fee cap of $3,000. The fee cap may be waived upon motion filed in advance with the court. If

LBAO

03-2020

9/22/03

Page 2

any "services other than counsel" are filed as part of the defense, they would also be payable from Indigent Defense Funds.

The Department of Corrections estimates that not more than three people per year would be sentenced to a state prison as a result of this bill. The average cost of incarceration for FY 2003 was $25,341 per inmate per year, or a total cost of $76,023 per year.

The Department of Justice stated the agency seldom becomes involved in the prosecution of violations concerning obscene matter and it is assumed that would continue. Therefor, the Department has determined any change in the penalties would have a negligible effect on the agency.