Bill Description: Senate Bill 1222 would impose civil and criminal liability on smartphone and tablet manufacturers whose devices do not automatically censor content. The act would also impose civil and criminal liability on individual device owners who allow a minor to access a device without a censorship filter.
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 1222 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. These censorship filters would be required to block any content transmitted via the internet that is deemed "harmful to minors."
Specifically, section 48-2105 of the act would impose "civil and criminal liability" on device manufacturers if a device "does not, upon activation, enable a filter" that complies with current state censorship standards and a minor accesses content the state believes should be censored.
A manufacturer seeking to comply with the act would essentially be required to index the entire internet and cross-reference this data with the definitions in Idaho statute of what makes something "harmful to minors."
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.
The proposals contained in the act 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 censorship filter providers.
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 48-2107 of the act creates extensive penalties for 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 enjoin any action that violates this chapter by issuing a "temporary restraining order or preliminary or permanent injunction" and seeking "the revocation of any license or certificate authorizing a manufacturer to engage in business in this state."
Section 48-2108 of the act would allow "any parent or legal guardian of a minor who accesses obscene content in violation of this chapter" to "bring a private cause of action in any court of competent jurisdiction against a manufacturer" whose device did not automatically activate a censorship filter.
Under this provision, device manufacturers would face "liquidated damages" of $50,000 for each violation, "punitive damages in an amount determined by the court," "nominal damages," "such other relief as the court deems appropriate, including court costs and expenses," and "attorney's fees."
The penalty provisions of the act would not be limited to device manufacturers. Section 48-2109 of the act makes it a criminal offense for any person other than a parent or legal guardian to "disable the filter on a device in the possession of a minor."
Of note, there is no language in the act that limits its penalties to times when the filter is disabled willfully, intentionally, or knowingly. There is also no requirement that the disabled censorship filter actually result in a minor accessing content the state believes should be censored.
A first violation of this subsection carries a fine of up to $5,000 and a second or subsequent violation could result in a fine of up to $50,000 and up to 1 year of incarceration.
The phrase "in the possession of a minor" is undefined, 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 the act, the owner or user of a device (such as a sibling or relative) could face substantial financial penalties and even possible incarceration for simply loaning a device with a deactivated censorship filter to a minor.
These provisions create an unreasonable obligation for device owners to keep intrusive censorship filters active even when they don't want or need them, just in case a minor ever uses the device for any reason.
Section 48-2106 of the act creates broad civil liability for "any person" who disables a censorship filter on a "device in the possession of a minor" if the minor "accesses obscene material" on the device.
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 the act are numerous and some are addressed elsewhere in this analysis.
The act would infringe on property rights by forcing consumers to purchase devices that automatically turn on censorship filters even when this goes against their needs and preferences. The act would make it essentially impossible for consumers to purchase and activate unfiltered devices in Idaho.
The act 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 applying the "harmful to minors" definition found in Section 18-1514, Idaho Code, to automated internet censorship filters.
In addition to infringing on free speech, the act 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 could comply with the state’s censorship requirements.
The act would further infringe on a device owner's privacy by requiring the device to "determine the age of the user during activation and account setup" regardless of the owner's preferences.