Bill Description: Senate Bill 1253 would impose criminal liability on smartphone and tablet manufacturers whose devices do not automatically activate censorship filters.
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 1253 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 if 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 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.
An additional problem with this bill is that the regulations it 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.
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."
NOTE: These penalties are a significant increase from last year's Senate Bill 1163, which set them at $1,000 per violation and $20,000 in aggregate.
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."
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?
According to the intent language contained in Senate Bill 1253, “The Idaho legislature, recognizing the importance of mental health in the growth and education of minors and a need to protect minors from accessing or downloading pornographic content that is harmful, declares it to be the policy of the state to promote the mental health of minors and adopt a comprehensive and proactive approach to reducing minors' access to such harmful content.”
To the extent that these assertions may be correct, there is an argument that minors have a right to be protected from adult content. This comes with an expectation that the state should act to prevent commercial entities from profiting from exposing minors to adult content.
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 "obscene material" definition found in Section 18-4104, Idaho Code, to automated internet censorship filters.
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.
There are several Supreme Court decisions that the provisions of this law would likely violate, and the law would likely be found unconstitutional. Idaho should look for a more narrowly tailored solution if it wants to address these issues constitutionally.
In addition to state censorship broadly infringing on free speech, the act would infringe on a device owner's privacy by requiring the device to obtain geolocation data and "determine the age of the user during activation and account setup" (regardless of the owner's preferences), so the device could comply with the state’s censorship requirements.
Of note, the requirements of the act would apply to any "tablet or a smartphone" manufactured on or after Jan. 1, 2025, 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 the provisions of the act, anonymously activating and using a basic tablet would effectively be prohibited.
The state should not require individuals to compromise their privacy and anonymity to use communication devices or access the internet.