Child protection—and common sense—won a victory this legislative season when Utah became the first state requiring that smart phones and tablets automatically activate filters for sexually explicit material.
Families who struggle through multiple steps in “Settings” trying to block harmful material on their children’s devices will be relieved to know that preventing children from accessing obscenity won’t fall on parents and guardians alone.
Utah’s H.B. 72 requires manufacturers to default filters and child safety protocols to “On” at activation of all smart devices. The filters can then be removed easily by parents and adults at any time with a passcode, in contrast with parents and guardians struggling to turn on these filters themselves.
The manufacturers of smart devices already have the infrastructure in place to implement child safety filters on their products. Both Apple and Google, who produce the majority of smart devices, have extensive safety features and parental controls available on their devices. The problem is that they are overly complicated for parents to navigate. Requiring manufacturers set filters to “On” by default streamlines the process and puts the burden on manufacturers to make their devices safe for children.
Governor Cox signed the bill into law on March 23, describing it as an “important message” about protecting children from inappropriate online material. More than a mere message are potential fines for manufacturers that don’t comply: $10-$500 per violation.
We can’t celebrate immediately, though.
Utah’s device filter law won’t take effect until five more states implement similar legislation.
The good news is that the filtering law enacted by Utah (H.B. 72) can serve as a model for other states and even federally. It is already being considered in at least two additional states.
The state of Utah has proved to be a trailblazer on similar efforts in the past. In 2016, Utah became the first state to approve a resolution that pornography is a public health crisis. Some 16 states then followed with similar measures. Last year, Alabama added itself to the list.
Pornography is “Toxic Brew”
Research is conclusive that exposure to pornography is most harmful to the developing mind. It has been linked to decreased academic performance, lack of impulse control, depression, and other mental health problems.
As the National Center on Sexual Exploitation’s (NCOSE) CEO Dawn Hawkins testified before the Utah state legislature:
“Mainstream pornography today normalizes and revels depictions of rape, violence against women, incest, racism, and teen-themed abuse. Other acts common in pornography include torture, group sex, bestiality, choking, and excretion.”
“This toxic brew has an insidious impact on young viewers, who have no real-world references—or an experience of authentic intimacy—to frame the violence and degradation they often stumble upon inadvertently.”
The Utah Parent Teacher Association was an active supporter of the bill’s passage, explaining its frustration with corporate actors:
“Device manufacturers have thus far been unwilling to manufacture safe devices for children and youth which are free from materials harmful to children.”
Yes, It’s Constitutional
The first objection pulled out by opponents is that it is not constitutional. The ACLU made this its chief talking point in opposing the innovative solution.
NCOSE’s Law Center drafted the original proposal after carefully reviewing all applicable constitutional case law and consultations with many outstanding constitutional law professors. They believe the legislation will withstand constitutional challenges by Big Tech and its allies.
Why? Because the proposal balances all the considerations outlined by the Supreme Court regarding pornography and the government’s legitimate right to protect children.
It’s worth getting a bit deeper into the law here.
The Supreme Court has emphasized that the legislature may encourage the use of filters to protect children online [Ashcroft v. ACLU, 542 U.S. 656, 670 (2004)].
This is complimentary to Supreme Court rulings that the State may restrict minors’ access to sexually explicit material including material that could be suitable for adults [Ginsberg v. New York., 390 U.S. 629, 636-638 (1968)]. The Court has also found that the State has a compelling interest in protecting minors from speech that is harmful to them, such as obscenity [Id. at 638-640].
However, it is unconstitutional to limit adults to only that speech which is appropriate for minors. [Butler v. Michigan, 352 U.S. 380, 383 (1957)]. Any content-based restrictions on speech, such as the filtering requirement in this proposed legislation, must pass strict scrutiny, meaning that it must be narrowly tailored to further a legitimate governmental interest and be the least restrictive means of accomplishing this goal [Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989)]; [Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997)].
Avoid Bad Legislation in Disguise
What will not work is a draft bill that pretends to be like H.B. 72., known as the Human Trafficking and Child Exploitation Prevention Act or Modernization Decency Act. The NCOSE Law Center believes this similar, so-called “model” legislation to be unconstitutional and technologically impractical. Nonetheless, this proposal continues to resurface around the country, though its primary drafter is a formerly licensed attorney named Chris Severe or Sevier. (Further articles here and here. Find the NCOSE analysis of another bill Severe calls the “Human Trafficking Prevention Act” here, which many are also confusing with NCOSE legislation.)
Utah H.B. 72 is not the Modernization Decency Act.
From a legal standpoint, the Modern Decency Act is constitutionally overbroad with respect to the material to be filtered, and it fails to meet the well-known “least restrictive means” test for accomplishing the government’s goal of protecting children.
Further, it requires fees to be paid to deactivate filters. Such a fee could be seen by the courts as a tax on expression and an unconstitutional burden on protected speech. It impairs access to speech based on its content and is thus a content-based restriction. Taxes on content-based restrictions are not permissible under US law.
H.B. 72 Increases Protection of Children Online
There has been a public outcry to protect children online as COVID-19 has led to children’s almost non-stop use of smart devices. Legislators are scrambling to respond, and many are asking for solutions to make smart devices safer for children. Unfortunately, there are many ways this can go wrong as there are a bevy of technological and constitutional minefields to navigate.
The result is Utah H.B. 72, what we believe to be the strongest constitutional and technologically practical approach to child safety on smart devices. It provides a higher degree of safety for children, does not deny access to adults, and passes constitutional scrutiny.
Utah’s H.B. 72 is the flag for all others state legislatures to follow!
Please share this information with your legislators so your state can implement the strongest and most effective solution to child safety online.