Bill Description: Senate Bill 1163 would force smartphone and tablet manufacturers to include and automatically activate strict content filters that limit access to adult content.

Rating: -5

NOTE: Senate Bill 1163 is related to Senate Bill 1057, introduced earlier this session. While the mandates and penalties contained in this bill are somewhat less severe than those found in Senate Bill 1057, the differences are a matter of degree, not of kind. This bill, then, receives the same rating. 

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 1163 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 transmitted via the internet that is deemed "harmful to minors." 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 essentially be required to index the entire internet and cross-reference this data with the vague definitions in Idaho statute of what makes something "harmful to minors."

The requirements imposed by Senate Bill 1163 would be costly and intrusive, especially given that such devices are manufactured for global markets, and this automatic filtering mandate would be imposed by just one state.

(-1)

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?

The proposal contained in Senate Bill 1163 is simply 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 would directly compete with other content filter providers. 

(-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?

Senate Bill 1163 creates extensive penalties for manufacturers whose devices do not automatically activate content filters within the state of Idaho. These include fines of up to $1,000 per violation and $20,000 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 legislation would allow the attorney general to "enjoin any action that constitutes a violation of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction" and to "seek the revocation of any license or certificate authorizing a manufacturer to engage in business in this state."

(-1)

The penalty provisions of Senate Bill 1163 would not be limited to device manufacturers. The bill would make it a criminal offense for any person other than 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 make any person other than a parent or legal guardian "liable in a civil action for knowingly enabling a passcode to remove a filter on a device in the possession of a minor if the minor accesses material that is harmful to minors on the device."

It is worth noting that the civil action in this bill uses a lower standard ("knowingly") than the criminal action ("knowingly and willfully"). Additionally, the civil action requires the minor actually access "material that is harmful to minors" while the criminal action is based on filter deactivation alone. 

The phrase "in the possession of a minor" is undefined as it relates to both the civil and criminal portions of this bill, which means the device in question does not have to be owned or primarily used by the minor. Rather, this phrase could refer to any device that is even momentarily in the hands of a minor, regardless of who owns the device.

Under this legislation, the owner or user of a device could face substantial financial penalties and even possible incarceration for simply loaning a device with a deactivated filter to someone under age 18.

These provisions create an unreasonable obligation for device owners to keep intrusive content filters active even when they don’t want or need them, just in case a minor ever uses the device for any reason.

(-1)

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 numerous and some have been mentioned elsewhere in this analysis. 

Senate Bill 1163 would infringe on property rights by forcing consumers to purchase devices that automatically turn on content filters even when this goes against their needs and preferences. The bill would make it nearly impossible for consumers to purchase and activate unfiltered devices in Idaho. 

Senate Bill 1163 would infringe on freedom of speech by making censorship the default state of every device activated in Idaho. This is an unreasonable infringement on the basic liberties of all involved parties. 

There are other concerns regarding free speech that are raised by the use of the vague "harmful to minors" definition found in Section 18-1514, Idaho Code. 

Senate Bill 1163 would infringe on a device owner's privacy by requiring the device to obtain geolocation data before it is fully activated (regardless of the owner's preferences), so the device can comply with the state-specific filter activation requirements.

(-1)