March 04, 2005
Another Dumb Utah Law
The Utah Legislature is at it again. (See my critique of their efforts to regulate spyware/provide some extra bucks for a few local companies at the expense of free competition). The Utah legislature has passed another sloppy and ill-conceived law (HB 260), this time attacking the dissemination of “harmful to minors” materials. (The law is pending with the governor for signature).
The basic structure of the bill is that the Attorney General is responsible for preparing a database of sites that do not restrict minor access to material that is harmful to minors. It’s unclear if the AG is supposed to go on a witchhunt or just wait for people to call the AG’s attention to a site. Then, IAP subscribers can ask their IAPs to block their access to harmful to minor materials and any websites in the AG’s database. The IAP can comply with this request by using network-level filtering software or by giving filtering software to the consumer (the IAP can’t charge requesting consumers more for the service/software, though they can raise prices generally). I use the term “IAP,” but the law also refers to “Internet service providers,” and this could be interpreted to include websites, email service providers, etc.
What is the point of this law? Consumers can buy filtering software themselves. If Utah felt the need to go further, it could theoretically (but maybe not constitutionally) spend money to prepare a list of sites that its consumers shouldn’t deal with; and consumers could find ways to use this as a block list as well if they wanted. So why drag IAPs into the middle of this? It makes no sense for Utah to put responsibility on IAPs if each subscriber must still make an individual election with their IAP. But, from my vantage point, the law seems likely to force IAPs to implement network-wide filtering mechanisms so that IAPs block content that the state doesn’t like. (It would be too costly to do custom solutions for each subscriber). In other words, this law appears to be intended to compel IAP to block “harmful to minors” content from subscribers who would not themselves choose to block it through their own efforts.
I am having a hard time seeing how this law will survive a constitutional challenge, given the track record of state anti-Internet porn laws (which are routinely struck down as violating the First Amendment and the dormant commerce clause) and, specifically, the unconstitutional Pennsylvania law that put a filtering role on IAPs.
So the net effect of this law (if signed by the governor) seems relatively simple. A lot of time and money in constitutional litigation will be spent to restore the status quo. The Utah legislature seems completely unconcerned about that. What I don’t understand is why voters tolerate such indefensible behavior by their elected “representatives.”
See Declan’s CNET story on the law.
UPDATE: I have blogged on the Governor's signing.