Thanks to a last-minute language substitution by Rep. Stephen Urquhart, an Internet porn filter bill introduced by Rep. John Dougall, HB260, unanimously passed the Utah House of Representatives on Feb. 25 with warnings from legislative staff attorneys that now, only part of the bill has a "high probability of being held unconstitutional." (Note: All legislators mentioned in this article are Republicans.)
That part would be Sec. 67-5-19, which requires the state's attorney general to identify and maintain a database of the porn sites, at a projected cost of $70,000 a year. Keepers of the database would have to amend and add to the list as porn sites multiply or change URLs, and another section of the bill requires all content providers either based in Utah or which generate or host content that is accessible in Utah to self-rate their sites as to whether material on the site is "harmful to minors" as defined ... somewhere outside of the "definitions" section of this bill.
In other words, content providers are supposed to know what the term means, and this bill switches the entire onus onto the content provider to determine if a person wishing to view its material is a minor. Whereas the law used to say, "A person is guilty of dealing in material harmful to minors when, knowing that a person is a minor, or having failed to exercise reasonable care in ascertaining the proper age of a minor." It now reads, "A person is guilty of dealing in material harmful to minors when, knowing that a person is a minor, or having negligently or recklessly failed to determine the proper age of a minor," he distributes to a minor material harmful to the minor, or performs for or with a minor, any material harmful to the minor.
Such distribution or performance used to have to be intentional; now, just doing it "negligently or recklessly" is enough to garner at least a $300 fine and two weeks in jail for the first offense. After that, each offense is a second degree felony, with a fine of at least $5,000 and at least a year in prison "without suspension of sentence" — and inspectors from the state's Division of Consumer Protection are required to check sites annually to determine if any content fits the state's unstated idea of "harmful to minors." The bill also funds public service announcements to advertise the existence of the registry and to inform consumers how to use it.
The legislative staff attorneys, who until last year were allowed to use their legal expertise to warn against likely unconstitutional legislation, but who are now limited to warning about legislation only if they can cite a specific court decision ruling a similar measure illegal, noted that, "The adult content registry is likely to block access to significant amounts of constitutionally protected material hosted on proxy servers that also contain material harmful to minors," which problem is analogous to the federal Child Online Protection Act, currently under injunction by the Third U.S. Circuit Court of Appeals after having been argued twice before the U.S. Supreme Court.
The big changes between the passed bill and its last revised version are in Sec. 76-10-1231(1)(a), which previously required service providers to use filtering technology to "prevent the transmission of material harmful to minors to the consumer at no additional cost to the consumer."
That section now reads, "Upon request by a consumer, a service provider shall filter content to prevent the transmission of material harmful to minors to the consumer at no additional cost to the consumer, except that a service provider may increase the cost to all subscribers to the service provider's services to recover the cost of complying with this section." [Emphasis added.]
Also, where the bill formerly exempted ISPs with less than 5,000 subscribers from the blocking requirements of the bill but required that they provide blocking software at cost to subscribers to use on their home computers, the new version removes that exemption and gives all ISPs three options: Either use a "generally accepted and commercially reasonable method to prevent a consumer's access" to adult material; provide "easy-to-enable and commercially reasonable" blocking software to the subscriber for installation on the subscriber's own computer; or simply "comply[] with any federal law in effect that requires the blocking of content from a registry of sites containing material harmful to minors."
In any case, the bill provides that any expenses incurred by the ISP in implementing the blocking may be recouped by allowing the ISP to increase the fees charged to all subscribers across the board.
All this is in addition to language which is unchanged from current law, that makes it a crime to send, distribute, publish, exhibit or advertise pornographic (not "obscene") material to anyone within the state, or to perform porn with them, although this bill raises each offense from a Class A misdemeanor to a third degree felony with a mandatory jail term of not less than 30 days, and a fine of not less than $1,000, "without suspension of sentence."
By the way, it's also a third degree felony, with the same punishments, to require a bookstore or newsstand, for instance, to accept pornographic (not "obscene") material as a condition for supplying that store with non-pornographic books, magazines, newspapers, etc., or to deny or revoke a franchise (or threaten to do so) if the franchisee refuses to carry porn "or material reasonably believed by the purchaser or consignee to be pornographic" as part of its stock. [Emphasis added] See, it doesn't have to be pornographic; you're guilty if someone just thinks it is!
After passage by the House, the bill moved on to the Utah Senate with an admonition from Rep. Craig Frank that, "I believe it is truly a war we must win, the war on pornography."
Utah: Not a fun place to do business!
