Summary
Hawaii H.B. 567 is a mandatory filtering bill that would make it illegal to manufacture or distribute a product that makes any content accessible on the internet without “digital blocking capability.”
The bill would also make it illegal to distribute such a product to a minor unless the filtering software is “actively and properly operating.” It would require any manufacturer or distributor of such product to make “reasonable and ongoing” efforts to ensure that “revenge pornography” is inaccessible, to prohibit the product from accessing any website that “facilitates prostitution” and to render websites known to facilitate “human trafficking” inaccessible.
Another section makes it a misdemeanor to manufacture or distribute a device that makes content available on the internet unless it contains filtering software that “makes any attempt to render” “revenge pornography,” websites that “facilitates prostitution or human trafficking” and child pornography inaccessible. It separately bars manufacture or distribution to a minor unless it has filters that are active and attempts to block “obscene” material, but such material as defined does not meet the established definition of obscenity.
“Revenge pornography” is defined as the nonconsensual disclosure of an image of a person who is nude or engaging in sexual conduct. The definition does not define “nude” or state whose consent is necessary. There is an existing Hawaii law that bars publication of certain nude images under specific circumstances, but that law is not referenced in this bill. The bill does not define what it means to “facilitate prostitution” or to “facilitate human trafficking.”
The distributor of the product shall deactivate the filtering software only if the consumer requests that it be disabled, presents proof that he or she is an adult, acknowledges receiving a written warning of the danger of turning off the filter and pays a $20 tax plus any additional charge imposed by the distributor.
In addition to these requirements, the manufacturer and each distributor must make reasonable and ongoing efforts to ensure that the filter is working properly. They must also create a website, a call center or other reporting mechanism to allow a person to report blocking of non-obscene material or the failure to block obscene material. Once a report is made, the distributor has five days to assess the content and block material that is obscene and unblock speech that is not obscene. If the distributor declines to block material reported as obscene, the attorney general or any person may bring a civil suit to block unblocked content. If the attorney general or the person prevails, they may seek damages of $500 per unblocked depiction. If the distributor decides not to unblock material reported as not appropriate to block, any person may sue to get the speech unblocked but the attorney general is not authorize to bring such a suit. In either case, the prevailing party is entitled to attorneys’ fees.
Status
The House Committee on Intrastate Commerce recommends the bill be passed with amendments. The Hawaii legislature has adjourned its 2019 session, but the legislature carries over into 2020.
Action
On February 4, 2019 Media Coalition submitted a memo in opposition to the House Committee on Intrastate Commerce, ahead of a scheduled hearing on the bill on February 5, 2019.
Analysis
History
On January 22, 2019, the bill was introduced and referred to the House Committees on Intrastate Commerce, on Judiciary, on Consumer Protection and Commerce, and on Finance.
On February 4, 2019, Media Coalition submitted a memo in opposition to the House Committee on Intrastate Commerce ahead of a scheduled bill hearing on February 5, 2019.
On February 5, 2019, the House Committee on Intrastate Commerce recommended that the bill be passed with amendments.