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79R6635 ATP-F By: Hartnett

H.B. No. 1307

A BILL TO BE ENTITLED

AN ACT relating to criminal background checks on users of online relationship services.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 35, Business & Commerce Code, is amended by adding Subchapter L to read as follows:

SUBCHAPTER L. ONLINE RELATIONSHIP SERVICE SAFETY

Sec. 35.131. DEFINITIONS.

In this subchapter:

(1) "Communicate" means to contact a person using real-time voice communication or in writing through the electronic transmission of free-form text.

(2) "Online relationship service" means a service through the Internet to arrange or facilitate the social introduction of two or more persons for the purpose of promoting the meeting of compatible individuals.

(3) "Online relationship service provider" means a person directly or indirectly engaged in the business of offering, promoting, or providing access to an online relationship service.

Sec. 35.132.

CONDUCT OF CRIMINAL DATABASE SEARCH OR FEDERAL CRIMINAL BACKGROUND CHECK.

(a) An online relationship service provider conducts a criminal database search on a person for purposes of this subchapter if the provider conducts a search for the person's felony and sexual offense convictions through a regularly updated database that:

(1) is a system or collection of public records;

(2) is operated and maintained in the United States;

(3) contains more than 170 million criminal records and sex offender registries; and

(4) has substantial national coverage.

(b) An online relationship service provider conducts a federal criminal background check on a person for the purposes of this subchapter if the provider obtains any available criminal history record information regarding the person from a system that is maintained by the Federal Bureau of Investigation and based on fingerprint identification or another method of positive identification used by the Federal Bureau of Investigation.

Sec. 35.133.

CONDUCT OF OR DISCLOSURE REGARDING CRIMINAL DATABASE SEARCH OR FEDERAL CRIMINAL BACKGROUND CHECK REQUIRED. An online relationship service provider that offers, provides access to, or promotes online relationship services to a resident of this state shall:

(1) for each person who uses the provider's relationship service, conduct a criminal database search:


(A) before initially allowing that person to communicate with another person using the same service; and

(B) at least as frequently as once every 12 months;

(2) conduct a federal criminal background check on a person before initially allowing that person to communicate with another person using the same service; or

(3) disclose as provided by Section 35.134 to each resident of this state who uses the provider's online relationship service that the provider has not conducted a criminal database search or a federal criminal background check on each person who uses the service.

Sec. 35.134.

DISCLOSURE OF FAILURE TO CONDUCT CRIMINAL DATABASE SEARCH OR FEDERAL CRIMINAL BACKGROUND CHECK.

(a) An online relationship service provider that has not conducted a criminal database search or a federal criminal background check on each person who uses the service to communicate shall prominently disclose, as required by Section 35.133(3), the provider's failure to conduct the search or check:

(1) on the home page of the provider's website accessible by a resident of this state and any other web page accessible by a resident of this state where a person is likely to first enter the provider's website;

(2) in each profile shown to a resident of this state who uses the provider's online relationship service; and

(3) at the beginning of each electronic mail message received by a resident of this state in connection with the use of the provider's online relationship service, including a communication between persons using the service.

(b) A disclosure under Subsection (a)(1) or (3) shall state in bold, capital letters in at least 11-point type:
"IMPORTANT NOTICE: WE HAVE NOT CONDUCTED CRIMINAL FELONY OR SEXUAL OFFENSE BACKGROUND CHECKS ON OUR COMMUNICATING MEMBERS."

(c) A disclosure under Subsection (a)(2) shall state in bold, capital letters in at least 11-point type:
"IMPORTANT NOTICE: WE HAVE NOT CONDUCTED A CRIMINAL FELONY OR SEXUAL OFFENSE BACKGROUND CHECK ON THIS INDIVIDUAL."

Sec. 35.135.

DISCLOSURE BY PROVIDER THAT CONDUCTS CRIMINAL DATABASE SEARCHES OR FEDERAL CRIMINAL BACKGROUND CHECKS.

(a) An online relationship service provider that conducts a criminal database search or federal criminal background check for each person who uses the provider's online relationship service to communicate shall provide a disclosure through a readily accessible link on the home page of the provider's website that includes:

(1) a description of the coverage of any criminal database used by the provider;

(2) an acknowledgement that:

(A) criminal background checks are not a perfectly safe solution and it is possible for a criminal to circumvent even the most sophisticated background search technology;


(B) only felony or other sexual offense convictions, and not arrests, are covered by the criminal background check; and

(C) a person can commit a crime without having a prior criminal conviction;

(3) a description of additional safety measures reasonably designed to increase awareness of safer dating practices; and

(4) a statement clearly describing whether the provider excludes from its website all persons identified as having a felony or sexual offense conviction.

(b) If an online relationship service provider does not exclude from its website all persons identified as having a felony or other sexual offense conviction, the provider shall prominently disclose in the profile of each resident of this state identified as having a felony or other sexual offense conviction:

"WARNING: THIS PERSON HAS BEEN IDENTIFIED THROUGH OUR CRIMINAL BACKGROUND CHECK TO HAVE A PRIOR CRIMINAL CONVICTION."

Sec. 35.136.

CIVIL ACTION.

(a) A person injured as a result of a violation of this subchapter may bring a civil action to recover:

(1) court costs and reasonable attorney's fees; and

(2) the greater of:

(A) actual damages; or

(B) exemplary, special, consequential, and other damages.

(b) An online relationship service provider is not liable under this section if the provider:

(1) conducts a criminal database search or a federal criminal background check as provided by Section 35.133(1) or (2) on each person who uses the provider's relationship service to communicate; and

(2) makes the disclosures required under Section 35.135.

SECTION 2. This Act takes effect September 1, 2005.