Mandatory internet filtering legislation (HTPA campaign)

Bills

2020

2019

2018

2017

Summary

The legislation makes it illegal to manufacture, distribute, or sell any product that makes content accessible on the internet, unless the device has an “active and operating” filter that blocks all sites that contain certain content (obscenity, nude images published without consent, promotes or facilitates prostitution or human trafficking; some legislation includes obscene for minors material too).

To deactivate the filtering software, the consumer who purchased the product must:

Request that it be deactivated (often in person);
Provide identification proving that he or she is an adult;
Receive a written warning of the dangers of using the internet without filters;
Acknowledge receiving the written warning; and
Pay a $20 tax to be remitted to the state – and the manufacturer or distributor may impose an additional fee

Many of these bills also require the manufacturer, distributor, or seller to make reasonable efforts to ensure that the filter is working properly and is routinely updated. They must create a website or call center to allow reporting of over- or under-blocking of prohibited content. Reports must be investigated and remedied within 30 days. If the filters were found to have failed to block prohibited material, an update must be sent to the software. If material not prohibited is blocked, the reporting party must be given access. The attorney general or a consumer can sue the manufacturer or seller or a product that is not equipped with working filtering software or that fails to block prohibited material. If successful, the plaintiff can receive civil damages plus legal fees. A court can also provide injunctive relief. In some cases, no cause of action is provided for blocking material that is not prohibited.

Issues

We understand the legislators’ desire to prevent human trafficking, but this can be done without violating the First Amendment.

The legislature can provide funding through a general appropriation, rather than imposing an unconstitutional tax on adults (and older minors) who want to access the internet without “Big Brother” forcing them to use filtering software that limits what they can read or watch.

The legislation violates the First Amendment for multiple reasons:

Nonobscene sexual speech is fully protected by the First Amendment and the government cannot block adults from seeing it or speakers from distributing it. U.S. v. Playboy, 529 U.S. 803, 811 (2000). The Supreme Court has repeatedly held that the state cannot block adults’ access to nonobscene sexual speech, even in an attempt to block minors’ access to sexual speech that is illegal for them. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989), Butler v. Michigan 352 U.S. 380 (1957) (to do so would be to “burn down the house to roast the pig”).
Mandatory filters are unconstitutional. The Supreme Court has ruled that the government cannot mandate filtering software to block access to sexual content on the internet because they are both overbroad and underinclusive. In Ashcroft v. American Civil Liberties Union, the Supreme Court assumed that the government cannot impose mandatory filtering software in a discussion of whether voluntary use of filtering software is a less restrictive alternative to a law criminalizing online speech. 542 U.S. 656, 669 (2004).
Voluntary filters are a less restrictive means to blocking access to speech. In Ashcroft, the Supreme Court held that voluntary filters are the best solution to blocking access to unwanted material since the end user can decide what material is appropriate for themselves or their children without censoring anyone else. Id.
This is an unconstitutional prior restraint. Burden to prove speech is obscene is on the government, not the speaker (or a private business). Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560 (1975). The state can only block access to obscene material after a court rules that it is obscene in a trial that affords the speaker full due process protections. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989). The state cannot get around these due process requirements by requiring companies to ban speech for the state by forcing them to sell only devices with filtering software. Bantam Books v. Sullivan, 372 U.S. 58 (1963).
Overbreadth: The legislation is overbroad in that it blocks access to nude images published without consent, which are protected by the First Amendment, except in very narrow circumstances. See Antigone Books v. Brnovich, 2:14cv2100 (D. Ariz. July 10, 2015); Ex Parte Jones Case, No. 12-17-00346-CR at 10 (April 18, 2018). Further, even if those images were illegal to post, they are not illegal to view, so the state cannot require that they be blocked.
Compelled speech: It is unconstitutional for the state to force a business to give a written lecture to its customers about the dangers of using the internet without filtering software. Generally, “freedom of speech prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006).
Unconstitutional delegation of power: The state cannot grant a nongovernmental body authority to determine what speech is illegal and therefore must be blocked. Entertainment Software Association v. Hatch, 443 F. Supp. 2d 1065, 1070-1071 (D. Minn. 2006) aff’d sub nom. Entertainment Software Association v. Swanson, 519 F.3d 768 (8th Cir. 2008); Engdahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis. 1970); Swope v. Lubbers, 560 F. Supp. 1328 (W.D. Mich. 1983)

It imposes an unreasonable burden for sellers/manufacturers of products that must be filtered.

It is impossible to develop software that blocks speech that is illegal without blocking legal content. Filtering software is not sophisticated enough to discern what are the community standards, what appeals to prurient interest, or what is patently offensive. Nor can it accurately assess whether a person has consented to the distribution of an image. Inevitably, filters will block most nude images and explicit words far beyond material that is obscene, obscene for minors, or “revenge pornography.” At the same time, filters will fail to block some material that is prohibited, especially text.
The legislation gives distributors a great incentive to block legal content rather than risk criminal prosecution and money damages in civil lawsuits.
The legislation will force manufacturers and distributors of products to serve as the government’s censorship agent and open them to civil suits by speakers and consumers.
The burdensome deactivation process will be expensive to implement. Distributors must verify that the customer is 18 years old or older, even if they have no physical location in the state but have an online presence. To avoid criminal prosecution, they must keep records as evidence that a person is an adult and was allowed to have the filters deactivated. They must supply written materials on the harms of deactivating.
It will be very costly to set up a website or call center to take complaints that the filter has not blocked illegal content or has blocked legal content. The distributor must hire staff that can review and make a legal assessment of whether material is obscene for minors for hundreds or thousands of complaints. An incorrect assessment is subject to a civil suit.
The creation and maintenance of filtering software will be expensive and time consuming. Distributors must either develop their own software or license thousands of copies of software developed. They must also pay to update the filtering software in perpetuity.
The cost is redundant because legislation requires both the manufacturer and distributor to install filters on each product. If the manufacturer and distributor do not cooperate on installing and maintaining a single filter on each product, they will each bear the expense.
This burden will be especially difficult for smaller businesses that do not have the resources to spend on creating, installing, and maintaining filtering software.
Distributors will lose business as consumers opt to purchase hardware and software in other states to avoid government regulation of their internet use.
The legislation will be a strong incentive for manufacturers to make products in other states to avoid the government mandate to install and maintain filtering software even if they will be sold in other states.

It places unreasonable burdens on consumers.

The deactivation process is burdensome and time-consuming for the consumer. He or she must make a written request, present identification, and provide written acknowledgement of being lectured about the dangers of material on the internet.
The consumer will have to go through this process numerous times for different hardware and software products to get unfiltered internet access.
The consumer will be forced to receive a lecture over and over about the threat of using the internet without filtering software.
The consumer must pay a $20 tax to the state and may have to pay an additional fee to the distributor for the deactivation.
The filters may substantially slow the speed for browsing the internet. The updates may use up memory as the device gets older.
The consumer will have a strong incentive to buy a device in a neighboring state to avoid the tax, the lecture, the reduced internet speed, and use of memory by the filtering software and subsequent updates.