Bill Description: Senate Bill 1158 would require mobile device manufacturers to automatically activate censorship filters on mobile devices that are activated in Idaho. 

Rating: -3

NOTE: Senate Bill 1158 is related to a host of bills introduced over the years, including Senate Bill 1253 (2024); Senate Bill 1222 (2024); Senate Bill 1163 (2023); Senate Bill 1057 (2023); and Senate Bill 1261 (2022). In each case, IFF has pointed out both fundamental and technical issues with these bills. Fundamentally, cellphone filter legislation is actually anti-family and dangerous to privacy. 

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 1158 would create Chapter 21, Title 48, Idaho Code, to require manufacturers of smartphones or tablets to include strict censorship filters that automatically take effect when the device is activated and the device cannot conclusively determine that the user is an adult. These mandatory censorship filters would be required to block content transmitted via the internet if that content is deemed "obscene material."

Specifically, Section 48-2105 of the act would impose civil liability on device manufacturers if a device "is activated in this state," and does not, "upon activation, enable a filter that complies with the requirements described in section 48-2104, Idaho Code; and a minor accesses obscene material on the device."

A manufacturer seeking to comply with the act would essentially be required to index the entire internet and cross-reference this data with what Idaho statutes consider "obscene material."

The requirements imposed by the act would be costly and intrusive, especially given that such devices are manufactured for global markets, and this mandate for automatic censorship filter activation would be imposed by just one state.

An additional problem is that the regulations this bill would impose are not needed to address the problems they purport 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 censorship filters.

Requiring device manufacturers to include and automatically enable censorship filters interferes with the market and would directly compete with existing providers of censorship filters.

(-1)

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?

Section 48-2106 of the act would impose significant financial penalties on device manufacturers whose devices do not automatically activate censorship filters within the state of Idaho. These include fines of up to $5,000 per violation and $50,000 in aggregate, plus "expenses, investigative costs, and attorney's fees" and "other appropriate relief."

Each device that does not comply would constitute a separate violation.

In addition to creating financial penalties, the act would allow the attorney general to "seek the revocation of any license or certificate authorizing a manufacturer to engage in business in this state if such manufacturer is found to be in violation" of this law. 

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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?

The provisions of this law violate both the privacy and free speech rights of mobile device users. 

In order to comply with this act, any device being activated would have to obtain both the user's location and age, so the device could comply with the state’s censorship requirements. This effectively prohibits anonymous activations. 

This act would apply to any "tablet or a smartphone manufactured on or after January 1, 2026," including basic tablets that do not have a mobile data connection and instead connect to the internet solely using Wi-Fi. Currently, such devices can be activated and used without the owner enabling location settings, establishing any type of account, or providing any identifying information. Under this act, anonymously activating and using a basic tablet would effectively be prohibited. 

An adult user would be unable to purchase a device without a content filter or activate the device without positively verifying his or her age. 

The state should not require individuals to compromise their privacy and anonymity to use communication devices or access the internet. 

(-1)

In addition to the privacy violations inherent in this act, there are free speech concerns. Making state censorship the default state of every device activated in Idaho is an unreasonable infringement on the basic liberties of all involved parties.

There are also concerns with the overbroad and subjective definition of "obscene material" found in Section 18-4104, Idaho Code. Applying such a definition to automated internet censorship filters imposes technical challenges and will likely result in excessive censorship (even for minors) due to manufacturers seeking to avoid litigation. 

Strict scrutiny should always be applied when the government considers or passes a law that places limits on fundamental rights, such as privacy, freedom of speech, or freedom of the press. This means the law must serve a compelling government interest and use the least restrictive means to achieve that end. 

It is unclear if this law would survive the inevitable constitutional challenges raised against it, but it would be prudent for Idaho to seek a more narrowly tailored solution if it wants to address these issues in a constitutional fashion. 

(-1)

Does it promote the breakdown of the traditional family or the deconstruction of societal norms? Examples include promoting or incentivizing degeneracy, violating parental rights, and compromising the innocence of children. Conversely, does it protect or uphold the structure, tenets, and traditional values of Western society?

The "declaration of policy" for Senate Bill 1158 says the state should "promote the mental health of minors and adopt a comprehensive and proactive approach to reducing minors' access" to obscene content.

While the notion of protecting minors is laudable, the methods adopted must not unduly infringe on the free market or violate fundamental rights of privacy or free speech.

(+1)