Bill Description: House Bill 498 would require websites that contain content deemed "harmful to minors" to perform age verification on users. 

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NOTE: House Bill 498 is essentially the same as House Bill 448, introduced earlier this session. The primary difference between these bills is where in Idaho code they would create a new chapter. House Bill 448 would create Chapter 21, Title 48, Idaho Code, which is the title governing "monopolies and trade practices." House Bill 498 would create Chapter 38, Title 6, Idaho Code, which is a bit of a catch-all title governing "actions in particular cases." Beyond this change and changes to the associated codes, the two bills are the same. 

Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

House Bill 498 would create Chapter 38, Title 6, Idaho Code, to regulate business entities that "knowingly and intentionally" publish material on the internet that falls under the bill's definition of "harmful to minors."

Under the provisions of the act, a "commercial entity" would include "corporations, limited liability companies, partnerships, limited partnerships, sole proprietorships, or other legally recognized business entities." In some cases, this could include personal websites and blogs if they were run under the author's LLC or a similar business entity. 

Specifically, any such publisher who owns, controls, or operates a website where more than one-third of the content falls under the definition of "harmful to minors" would be required by law to "perform reasonable age verification methods to verify the age of individuals attempting to access the material" and after verifying the age of the individuals, prevent minors from accessing the material.

It is unclear how the percentage of content would be determined. Would it be by the total number of files? The size of files? Would a movie and an image each be considered one piece of content? Furthermore, it is unclear if a film with one scene that might fall under the definition of "harmful to minors" would be considered "harmful to minors" in its entirety. Would the percentage of the film featuring the scene be relevant? 

Beyond the challenges of calculation, there are broader questions of content categorization. There are many websites that allow content to be added by users, and many do not review content to determine if it falls under the definition of "harmful to minors" found in this bill. It is unclear how this statute would impact forums and bulletin board sites such as Reddit and 4chan that contain a broad mix of user-submitted content, an undefined amount of which would fall under the definition of "harmful to minors" contained in this bill. 

The age verification system required under this law would need to verify that any persons seeking to access the material were age 18 or older by requiring them to provide a "digitized identification card," "government-issued identification," and/or "public or private transactional data." 

Implementing such an age verification system would be costly and intrusive for website owners, especially since some websites covered by this bill do not require an account or payment information for access. By design, most websites exist for wide (sometimes global) audiences and state-level regulation is particularly disruptive.

When government requires online content publishers to perform age verification on users as a means of censoring access to adult content, it competes with the numerous existing companies that already provide a wide range of customizable censorship filters. 

Section 48-2103 of the act says, "Any commercial entity that knowingly and intentionally publishes material that is harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material."

Enforcement of this section would be through a private cause of action initiated by the person alleging harm, or the parent or guardian of a child who encountered online content that falls under the bill's definition of "harmful to minors."

Under this law, website owners are tasked with blocking minors from accessing adult content by implementing age-verification systems on their websites. Website owners who do not establish such systems or whose systems are not sufficiently robust to prevent even minors who are willing to lie from accessing adult content will face lawsuits and statutory damages of "no less than" $10,000 per violation plus "court costs and reasonable attorney's fees."

Even if a website owner is found not to have violated the law, the bill explicitly states that "a court may not award costs or attorney's fees to a litigant who is sued under this section." This means that even website owners who comply with the costly and intrusive regulations imposed by this law could still face substantial legal expenses to defend themselves from nuisance lawsuits. 

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Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

There are several potential constitutional objections to the bill, related to free speech and privacy. The act would infringe on the free speech of both online content publishers and adult website users. Broad access to information across the open internet has thrived due to the lack of barriers between content publishers and website users. This bill would create barriers that limit access, not just for minors but for all internet users. 

In addition to presenting free speech concerns, the bill would infringe on website users' privacy by requiring them to verify their ages using a "digitized identification card," "government-issued identification" or "commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the information is at least eighteen (18) years of age or older." In practice, this latter method typically requires providing a credit or debit card. This goes far beyond the typical age gate pop-up where a user enters a birthdate and clicks a button. 

While the act instructs any commercial entities or third parties performing age verification to "not retain any identifying information of the individual after access has been granted to the material," requiring a user to provide any one of these methods of age verification does compromise that user's anonymity. 

At a time when many internet users go to extended lengths to maintain anonymity (such as by using VPNs and privacy browsers), requiring personal identity verification to access content or exchange information creates an ongoing threat to user privacy. The mandated verification process could also create an increased likelihood of identity theft. Additionally, legitimate fears of identity theft arising from these mandates are likely to dissuade users from accessing the sites requiring it, thus creating a chilling effect on lawful speech.

An additional problem is that requiring internet users to verify their identity with a government ID, credit card, or debit card effectively denies access to those who lack these documents. Individuals who don't have these documents may find themselves unable to access certain websites, not because they are not of legal age, but because they can't prove their age in the way the websites require.

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According to the intent language contained in House Bill 498, "the legislature finds that pornography is creating a public health crisis and having a corroding influence on minors. … Pornography contributes to the hyper-sexualization of teens and prepubescent children and may lead to low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and increased desire among adolescents to engage in risky sexual behavior. Pornography may also impact brain development and functioning, contribute to emotional and medical illnesses, shape deviant sexual arousal, and lead to difficulty in forming or maintaining positive, intimate relationships, as well as promote problematic or harmful sexual behaviors and addiction."

To the extent that these assertions may be correct, there is an argument that minors have a right to be protected from adult content. There is also an argument that the state should take action to prevent commercial entities from profiting by exposing minors to adult content.

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