Bill Description: Senate Bill 1057 would force smartphone and tablet manufacturers to include and automatically activate strict content filters that limit access to adult content.
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?
Senate Bill 1057 would create Chapter 20, Title 48, Idaho Code, to require manufacturers of smartphones or tablets to include strict content filters that automatically take effect when the device is activated. These filters would be required to block any content deemed "harmful to minors" and the devices must be designed to "reasonably preclude a user other than a user with a passcode the opportunity to deactivate, modify, or uninstall the filter."
A manufacturer seeking to comply with this proposal would have to index the entire internet and cross-reference this data with the vague definitions in Idaho statute of what makes something "harmful to minors."
Given that such devices are manufactured for global markets, a requirement imposed by one state is a significant and costly burden.
The requirements imposed by Senate Bill 1057 would be costly and intrusive. It would effectively require the device manufacturer to track and verify the age of any person who activates a device. It would also require the phone to use precise geolocation data once it is activated, so it could comply with state-specific requirements.
Does it transfer a function of the private sector to the government? Examples include government ownership or control of any providers of goods or services such as the Land Board’s purchase of a self-storage facility, mandatory emissions testing, or pre-kindergarten. Conversely, does it eliminate a function of government or return a function of government to the private sector?
This proposal is not needed to address the problems it purports to see and fix. There are already myriad systems of parental control available from hardware and software providers; . the market has already met the demand for content filters. Requiring device manufacturers to include and automatically enable filters interferes with the market and could even force existing filter providers out of business.
Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
Senate Bill 1057 creates extensive penalties for device manufacturers whose devices do not automatically activate content filters within the state of Idaho. These include fines of up to $5,000 per violation, "the revocation of any license or certificate authorizing a manufacturer to engage in business in this state," and "a temporary restraining order or preliminary or permanent injunction" against the manufacturer.
The manufacturer can also be charged for reasonable expenses, investigative costs, attorney's fees, and "other appropriate relief."
Each device manufactured that does not comply will constitute a separate violation.
An additional provision of Senate Bill 1057 provides for a private cause of action by a parent or legal guardian against a device manufacturer whose device does not automatically enable a content filter.
The penalty provisions of Senate Bill 1057 would not be limited to device manufacturers. The bill says, "it shall be a criminal offense for any person, with the exception of a parent or legal guardian, to knowingly and willfully enable the passcode to remove or deactivate the filter on a device in the possession of a minor."
The bill would also allow "any parent or legal guardian of a minor" to "bring an action in a court of competent jurisdiction against any person who is not the parent or legal guardian of the minor and who knowingly enables the passcode to remove or deactivate a filter on a device in the possession of a minor resulting in the minor's exposure to content that is harmful to minors."
The phrase "in the possession of a minor" does not require the device in question to be owned or primarily used by the minor. Rather, it can refer to any device that is even momentarily in the hands of a minor regardless of who owns the device. This fact makes the phrase problematic.
Under this legislation, the owner or user of a device could face up to 1 year in prison, a criminal penalty of up to $50,000, and a civil penalty of up to $40,000 (plus punitive damages) for loaning it to someone under age 18, if that minor uses it to access adult content.
These provisions create an unreasonable obligation for all device owners: Keep intrusive content filters active even when they don’t want or need them, just in case a minor ever uses their device for any reason.
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?
The constitutional objections to this bill are extensive and some have been addressed in other portions of this analysis.
Requiring devices activated in Idaho to automatically turn on a content filter violates the rights of consumers to purchase devices tailored to their needs and preferences. Making censorship the default state of every device activated in Idaho is an unreasonable infringement on the basic liberties of all involved parties.
There are additional concerns regarding free speech that are raised by the use of the vague "harmful to minors" definition found in Section 18-1514, Idaho Code.
Additionally, complying with this bill would effectively require the device manufacturer to track and verify the age of any person who activates a device. It would also require a manufacturer to use precise geo-location data when the phone is activated, in order to comply with state-specific requirements. These requirements compel device manufacturers to institute intrusive measures that compromise the privacy of device users.