North Carolina will soon have a new law, effective October 1, 2024, that prohibits local governments, state agencies, the judicial branch, and the legislative branch from allowing pornography to be viewed on their networks or devices. The law, found at Section 7 of S.L. 2024-26, establishes a deadline for government employees and officials to delete any pornography from their government devices, creates reporting requirements for unauthorized viewing or attempted viewing of pornography, and requires public agencies (including units of local government and public school units) and the judicial and legislative branches to adopt policies governing the use of their networks and devices. It also contains some important exceptions for employees and officials who might need to view pornography (as that term is defined by this new law) as part of their official duties.
How the Law Applies
S.L. 2024-26 enacts a new section of the General Statutes: G.S. 143-805. The scope of this statute is sweeping. It applies to any “public agency” in North Carolina, which is defined at G.S. 143‑805(g)(5) as any of the following:
- all State agencies and offices of the members of the Council of State, including all boards, departments, divisions, constituent institutions of The University of North Carolina, community colleges, and other units of government in the executive branch;
- units of local government (as defined in G.S. 159-7);
- public authorities (as defined in G.S. 159-7); and
- public school units (as defined in G.S. 115C-5).
As described in more detail below, many elements of the new law also apply to the judicial branch and the legislative branch. The law does not apply to a user of an authorized account paying for use of communications services under Article 16A of Chapter 160A of the General Statutes (e.g. private users of a city-owned communication service).
How the Law Defines “Pornography”
“Pornography” is defined in the new law as “[a]ny material depicting sexual activity,” and “sexual activity” is defined as in G.S. 14‑190.13. See G.S. 143-805(g). If material depicts any of the seven categories of acts defined as “sexual activity” in G.S. 14‑190.13, then it constitutes “pornography” for purposes of this new law. Mere nudity that does not involve sexual activity as specified in one of these seven statutory categories (such as a “lascivious exhibition of the genitals or pubic area”) would not be covered under this definition of “pornography.”
The new law also incorporates the definition of “material” found in G.S. 14‑190.13, which includes “[p]ictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words” (emphasis added). As of December 1, 2024, the definition of “material” in G.S. 14-190.13 will be revised to also include “digital or computer-generated visual depictions or representations created, adapted, or modified by technological means, such as algorithms or artificial intelligence.” See S.L. 2024-37.
Prohibitions on Allowing Pornography to be Viewed
The new G.S. 143‑805(b) mandates that public agencies (as defined above), the judicial branch, and the legislative branch “shall not permit” employees, elected officials, or appointees to view pornography on devices owned, leased, maintained or otherwise controlled by a public agency, the judicial branch, or the legislative branch, respectively. Public agencies (which include public schools, community colleges, and institutions in the UNC system) are also prohibited from permitting students to view pornography on a device owned, leased, maintained, or otherwise controlled by a public agency (i.e., the school the student attends). A cell phone, desktop or laptop computer, or other electronic equipment capable of connecting to a network constitutes a “device” for purposes of this law. G.S. 143-805(g)(1).
Likewise, under the new G.S. 143‑805(a), all public agencies, the judicial branch, and the legislative branch “shall not permit” their employees to view pornography on their respective networks. For example, even if an employee of one of these agencies or branches brings their own personal cell phone or laptop to work, the agency or branch is required to prohibit that employee from viewing pornography via the public agency or branch’s “network” (which includes internet access, per G.S. 143‑805(g)(3)).
There is an important distinction in how these two prohibitions apply. Public agencies, the judicial branch, and the legislative branch are prohibited from permitting employees, elected officials, appointees, or students to view pornography on devices owned, leased, maintained, or otherwise controlled by the agency or branch. G.S. 143‑805(b). But as for viewing pornography via their networks, the prohibition extends no further than the agency or branch’s employees. G.S. 143‑805(a).
Though G.S. 143-805(a) and (b) require public agencies, the judicial branch, and the legislative branch not to allow certain individuals to view pornography on their devices and networks, the statute does not specify particular actions that these agencies or branches must take to ensure such activity is not occurring. For example, the statute does not explicitly require these agencies or branches to actively monitor or investigate their devices or networks for the existence of such material. However, if public agencies do monitor, discover, or otherwise become aware of instances of unauthorized viewing of pornography on their networks and devices, those instances must be reported to the State Chief Information Officer (CIO), as described in more detail later in this post. See G.S. 143-805(f).
Exceptions to the Prohibitions
G.S. 143-805(d) carves out a list of exceptions to the prohibitions on allowing employees and officials to view pornography. Certain government employees and officials might need to view material that would be considered “pornography” under the new law in order to carry out their duties. Consider, for example, that during the investigation and trial of a sex crime, law enforcement officers, prosecutors, and the judge may all have to view images depicting sexual activity. As my colleague Sara DePasquale noted in this blog post, attorneys for county departments of social services also handle evidence in some child abuse, neglect, or dependency cases that may constitute “pornography” under the new law.
The new law creates exceptions that cover these types of activities. Public agencies, the judicial branch, and the legislative branch are not required to prohibit the viewing of “pornography” on a government-issued device or via a government network by any official or employee who is engaged in any of the following activities in the course of their official duties:
- investigating or prosecuting crimes, offering or participating in law enforcement training, or performing actions related to other law enforcement purposes;
- identifying potential security or cybersecurity threats;
- protecting human life;
- establishing, testing, and maintaining firewalls, protocols, and otherwise implementing G.S. 143-805;
- participating in judicial or quasi-judicial proceedings;
- conducting or participating in an externally funded research project at one of the constituent institutions of The University of North Carolina; or
- researching issues related to the drafting or analysis of state laws as necessary to fulfill the requirements of the employee’s official duties.
The new law requires the State Chief Information Officer (CIO) to publish recommendations for appropriate viewing of “pornography” (as defined by the new law) in the course of their official duties, as allowed under G.S. 143-805(d), no later than January 1, 2025.
There is no exception allowing students to view such material, nor is there an exception that explicitly allows for the viewing of such material for instructional purposes (even if such purposes would fall within an employee’s official duties).
Requirement to Adopt a Usage Policy
G.S. 143-805(c) requires each public agency to adopt a policy governing the use of its network, as well as the use of devices owned, leased, maintained, or otherwise controlled by that public agency, no later than January 1, 2025. Likewise, the judicial and legislative branches must adopt a policy by January 1, 2025 governing the use of their networks and devices owned, leased, maintained, or otherwise controlled by those branches. All of these policies must delineate the disciplinary actions that will be taken in response to a policy violation. The new law does not, however, speak to what those disciplinary actions must be or otherwise require any particular terms to be included in these usage policies.
Many public agencies, including state agencies, public schools, and units of local government, may already have policies in place regarding the use of their networks and devices. However, considering the new provisions of G.S. 143‑805, any existing policies will need to be updated by January 1 to reflect the new prohibitions on allowing pornography to be viewed, the exceptions to those prohibitions, and disciplinary actions for potential policy violations.
Public officials and employees who need to access or view material that constitutes “pornography” under the new law as part of their official duties will likely want to confer with the leaders or governing bodies of their public agencies to ensure that their work falls within the exceptions in G.S. 143-805(d) and that such exceptions are accurately reflected in these new policies.
Annual Report to the State Chief Information Officer
How will the state monitor compliance with these new requirements? G.S. 143-805(f) requires each public agency to send an annual report to the State CIO containing the following information:
- the number of incidences of unauthorized viewing or attempted viewing of pornography on that public agency’s network;
- whether the unauthorized viewing was by an employee, elected official, appointee, or student of that public agency; and
- whether any of the unauthorized viewing was on a device owned, leased, maintained, or otherwise controlled by that public agency.
This reporting requirement applies only to “public agencies,” as there is no equivalent requirement in G.S. 143-805 for the judicial branch or the legislative branch.
Public agencies must submit these reports annually no later than August 1 (starting in 2025), in the format required by the State CIO. By October 1 of each year (starting in 2025), the State CIO must report on the information compiled from those reports to the Joint Legislative Oversight Committee on Information Technology.
Deadline to Delete Pornography on Government Devices
An uncodified provision of S.L. 2024-26 (Section 7(b)) requires employees, elected officials, appointees, and students of each public agency who have pornography saved to a device owned, leased, maintained, or otherwise controlled by the public agency to remove, delete, or uninstall that pornography no later than January 1, 2025. Similarly, the law requires employees, elected officials, and appointees of the judicial or legislative branch who have pornography saved to any device owned, leased, maintained, or otherwise controlled by that branch to remove, delete, or uninstall that pornography by January 1, 2025. This requirement to remove, delete, or uninstall saved pornography does not apply to an official or employee engaged in any of the activities listed in G.S. 143‑805(d) (described above) in the course of that official’s or employee’s duties.
S.L. 2024-26 does not prescribe any penalty for employees, officials, appointees, or students who fail to delete saved pornography from their government-issued devices. However, failure to delete saved pornography from a device owned, leased, maintained, or controlled by a public agency, the legislative branch, or the judicial branch would presumably violate the device usage policies required by G.S. 143‑805(c), and accordingly, could lead to consequences under such policies.