Thanks to a last-minute language substitution by Rep. Stephen Urquhart, the Internet porn filter bill introduced by Rep. John Dougall, HB260, has been passed unanimously the Utah House of Representatives 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 hosts 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 woe to those who fall afoul of inspectors from the state's Division of Consumer Protection, whose duty it is to check sites annually and determine if any content fits the state's idea of "harmful to minors": It could mean a $5,000 fine and up to a year in jail for each offense.
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 which is currently under injunction by the Third U.S. Circuit Court of Appeals after having been argued twice before the U.S. Supreme Court.
But not many of those regulations have changed from the previous version of HB260, which we reported on here (ß insert link to previous article).
The big changes 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."
And in any case, the bill provides that any expenses incurred by the ISP in implimenting the blocking may be recouped by allowing the ISP to increase the fees charged to all subscribers across the board.
Other provisions of the previous version of the bill remain the same, including appropriating $250,000 in taxpayer funds to set up the adult site registry and advertise its existence, oversight and updating of the registry, requirements for self-rating sites, the increased penalties for various violations, and the clearly-unconstitutional sanctioning of First Amendment-protected "pornographic material."
The bill has moved on to the Utah Senate today with an admonition from Rep. Craig Frank that, "I believe it is truly a war we must win, the war on pornography."
Utah: Still not a friendly place for adults to do adult business.
