Hawaii Senate Bill 2838

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Summary

S.B. 2838 is an HTPA bill that bars the manufacture, sale, offer for sale, lease or other distribution of any device that makes content accessible on the internet unless the device “contains” filtering software that blocks “pornographic” material, and the software must block “obscene” material if the manufacture, sale or distribution is to a minor.

Knowingly failing to do so is a misdemeanor. A violation is deemed an unfair sales practice.

Hawaiian law defines “pornographic” as obscene using the Miller test. “Obscene” is not defined in the bill and the term is not used in Hawaiian law.

The manufacturer or distributor must also “make reasonable and ongoing efforts” to block access to “revenge pornography,” and websites that facilitate or promote prostitution or human trafficking. Hawaii has a “revenge porn” law but it does not use that term. There is no definition in the bill for “website that facilitates prostitution” or “website that facilitates human trafficking.”

Filters may only be deactivated if:

1. The consumer requests that it be deactivated.
2. The consumer presents identification to verify the consumer is an adult.
3. The consumer acknowledges receiving a written “warning” of the potential danger of deactivating the filter.
4. The consumer pays a $20 tax to the business (which must be remitted to the state).

The manufacturer or seller of the device may choose to charge their own “opt-in” fee, but it is not apparent what the consumer is opting in to.

The manufacturer or distributor must also make reasonable and ongoing efforts to ensure that the filter is working properly. This includes distributing monthly updates to the software. The manufacturer or distributor must also create a website, call center or other reporting mechanism to allow a person to report over blocking and under blocking. Non-obscene material must be unblocked within five business days. A consumer may seek judicial relief for failure to unblock in a timely manner. The bill does not provide for damages or fees.

If material that should be blocked is reported to the call center or website, it must be blocked within five business days. The attorney general or the consumer may sue the manufacturer or seller if they fail to respond to a report of material that should have been blocked but was not. They can seek $500 in damages for each item that was reported and not subsequently blocked. The prevailing party is entitled to legal fees.

There is no requirement that the material be proven to obscene, obscene for minors or otherwise required in order to blocked.