Lawmakers in the Alabama state legislature have voted for a bill that would require parental controls and NSFW content filters to be enabled on every phone and tablet sold in the state. House Bill (HB) 298, or the Protection of Minors from Unfiltered Devices Act, cleared the state House with an overwhelming 70-8 vote, with two dozen members abstaining from voting, last week. Now in the Senate, HB 298 is seeing success after the bill’s sole sponsor, state Rep. Chris Sells, failed in some previous legislative sessions to push this legislation to approval.
Due to a renewed focus by state lawmakers to crack down on the online adult entertainment industry, it isn’t a surprise that HB 298 is finally seeing some success.
If it were to become law, this bill would make Alabama one of the only other states in the union to have such a law on the books. Only Utah (surprise, surprise) has a law that requires porn filtering software to be enabled on all mobile devices sold. Passed in 2021, this law was the product of state Rep. Susan Pulsipher and the anti-porn lobbying group NCOSE (the National Center on Sexual Exploitation; formerly the right-wing religious group Morality in Media). Utah Gov. Spencer Cox gave the greenlight to Pulsipher’s House Bill 72 which has a caveat built into the legalese. Utah’s porn filtering law will remain dormant until five other states adopt similar laws. This would seem like a tall order, but, let’s be real.
The moral panic surrounding pornography has grown so toxic that anything sexual is considered “porn” in the eyes of the contemporary Republican Party. It is important to remember that content filtering laws, no matter what it is being filtered, are very ineffective and lack common sense. I wrote for Techdirt in March about content filtering. There, I refer to research conducted by the Oxford Internet Institute in mid-2018.
Victoria Nash and Andrew Przybylski, the researchers in question, conducted an analysis of the impacts a national porn filter would have on content access and free speech in the United Kingdom. They found that content filters aren’t consistent and could under- or over-block content that actually meets the criteria of being obscene to minors or that is non-obscene content like comprehensive sexual health material or LGBTQ subject matter. Content filters have evolved since then but the consensus, based on case law, is that blocking material isn’t necessarily censorship.
In the case United States v. American Library Association, a plurality of the Supreme Court upheld a law that requires public libraries and schools to have internet content filters in place. However, this was not a mandate for everyone: just as a condition to be eligible for certain federal grants. A full mandate for everyone may lead to a different outcome. While the American Civil Liberties Union condemned the ruling as a violation of the First Amendment, the high court tried to minimize the harm to adults as much as possible. The American Library Association is right to still maintain the position that it opposes filters that block content for both adults and minors, as such content is likely a form of constitutionally protected speech. Applying a content filter legal mandate to personal devices opens up a Pandora’s box of issues that a state or local government is unable to address.
For starters, there are clear interstate commerce issues that need to be addressed. If Alabama becomes the next U.S. state to require porn filters turned on mobile devices at the point of purchase by a consumer and enforces the law without a caveat like the one found in the Utah filtering law, the Commerce Clause is already violated. Only Congress and the federal government can regulate interstate commerce and foreign trade.
Since mobile device manufacturers rely on labor in other countries, like China, and global supply and value chains to bring a single mobile device to consumers, the added requirements for one relatively small share (Alabama has a population of over 5.04 million) in the overall North American mobile device consumer market could incentivize a complete withdrawal or drawn-back divestment. Alabama would also have no constitutional standing to enforce such a law through a consumer protection context. This line of reasoning is exactly what mobile service providers argued about HB 298 during the committee phase a few weeks ago. Five lobbyists spoke in opposition during the committee hearing, according to AL.com, including a lobbyist representing the Motion Picture Association and the Entertainment Software Association named Knox Argo, who pointed out that the bill is “blatantly unconstitutional.”
The CTIA, the trade association representing wireless providers like AT&T and T-Mobile, was represented by lobbyist Jake Lestock. “Mandating Alabama-specific technical requirements on devices sold nationally is unworkable,” he said. “Operating systems and other functionalities are not designed on a state-by-state basis.” In addition to the wireless industry’s clear opposition, the other negative element of the bill is a blatant demonstration of religious do-gooderism run amok. Rep. Sells is a self-described social conservative who is on record endorsing prayer in schools. He is the type like Rep. Pulsipher in Utah to see porn as a crisis.
In fact, Alabama declared porn a public health crisis in 2020. There is no evidence of a public health crisis as it relates to pornography consumption. There is also no medical or scientific evidence supporting pornography addiction. But, bills like HB 298 are presented as public safety and health interventions because of the clear bias proponents of this type of legislation maintain. No, filtering content will not improve public health. While no minors should ever see porn, bills like these attempt to strip away the civil liberties of everyone — youth and adults alike.
On top of all the issues described above, other benchmark Supreme Court cases like Reno v. American Civil Liberties Union, Ashcroft v. American Civil Liberties Union, and Ashcroft v. Free Speech Coalition further suggest that such onerous laws that would limit free speech on the internet are unconstitutional. As a reminder, Reno rendered the Communications Decency Act of 1996 unconstitutional as it significantly chilled online speech and solidified the safe harbor clause in Section 230 that is the de facto “First Amendment of the internet.”
I’ll keep you all posted as to the latest developments on content filtering proposals moving forward. It’s high time people realize much more is at stake than someone’s ability to wank to their iPhone.
Michael McGrady is a journalist and commentator focusing on the tech side of the online porn business, among other things.
If it were to become law, this bill would make Alabama one of the only other states in the union to have such a law on the books. Only Utah (surprise, surprise) has a law that requires porn filtering software to be enabled on all mobile devices sold. Passed in 2021, this law was the product of state Rep. Susan Pulsipher and the anti-porn lobbying group NCOSE (the National Center on Sexual Exploitation; formerly the right-wing religious group Morality in Media). Utah Gov. Spencer Cox gave the greenlight to Pulsipher’s House Bill 72 which has a caveat built into the legalese. Utah’s porn filtering law will remain dormant until five other states adopt similar laws. This would seem like a tall order, but, let’s be real.
The moral panic surrounding pornography has grown so toxic that anything sexual is considered “porn” in the eyes of the contemporary Republican Party. It is important to remember that content filtering laws, no matter what it is being filtered, are very ineffective and lack common sense. I wrote for Techdirt in March about content filtering. There, I refer to research conducted by the Oxford Internet Institute in mid-2018.
Victoria Nash and Andrew Przybylski, the researchers in question, conducted an analysis of the impacts a national porn filter would have on content access and free speech in the United Kingdom. They found that content filters aren’t consistent and could under- or over-block content that actually meets the criteria of being obscene to minors or that is non-obscene content like comprehensive sexual health material or LGBTQ subject matter. Content filters have evolved since then but the consensus, based on case law, is that blocking material isn’t necessarily censorship.
In the case United States v. American Library Association, a plurality of the Supreme Court upheld a law that requires public libraries and schools to have internet content filters in place. However, this was not a mandate for everyone: just as a condition to be eligible for certain federal grants. A full mandate for everyone may lead to a different outcome. While the American Civil Liberties Union condemned the ruling as a violation of the First Amendment, the high court tried to minimize the harm to adults as much as possible. The American Library Association is right to still maintain the position that it opposes filters that block content for both adults and minors, as such content is likely a form of constitutionally protected speech. Applying a content filter legal mandate to personal devices opens up a Pandora’s box of issues that a state or local government is unable to address.
For starters, there are clear interstate commerce issues that need to be addressed. If Alabama becomes the next U.S. state to require porn filters turned on mobile devices at the point of purchase by a consumer and enforces the law without a caveat like the one found in the Utah filtering law, the Commerce Clause is already violated. Only Congress and the federal government can regulate interstate commerce and foreign trade.
Since mobile device manufacturers rely on labor in other countries, like China, and global supply and value chains to bring a single mobile device to consumers, the added requirements for one relatively small share (Alabama has a population of over 5.04 million) in the overall North American mobile device consumer market could incentivize a complete withdrawal or drawn-back divestment. Alabama would also have no constitutional standing to enforce such a law through a consumer protection context. This line of reasoning is exactly what mobile service providers argued about HB 298 during the committee phase a few weeks ago. Five lobbyists spoke in opposition during the committee hearing, according to AL.com, including a lobbyist representing the Motion Picture Association and the Entertainment Software Association named Knox Argo, who pointed out that the bill is “blatantly unconstitutional.”
The CTIA, the trade association representing wireless providers like AT&T and T-Mobile, was represented by lobbyist Jake Lestock. “Mandating Alabama-specific technical requirements on devices sold nationally is unworkable,” he said. “Operating systems and other functionalities are not designed on a state-by-state basis.” In addition to the wireless industry’s clear opposition, the other negative element of the bill is a blatant demonstration of religious do-gooderism run amok. Rep. Sells is a self-described social conservative who is on record endorsing prayer in schools. He is the type like Rep. Pulsipher in Utah to see porn as a crisis.
In fact, Alabama declared porn a public health crisis in 2020. There is no evidence of a public health crisis as it relates to pornography consumption. There is also no medical or scientific evidence supporting pornography addiction. But, bills like HB 298 are presented as public safety and health interventions because of the clear bias proponents of this type of legislation maintain. No, filtering content will not improve public health. While no minors should ever see porn, bills like these attempt to strip away the civil liberties of everyone — youth and adults alike.
On top of all the issues described above, other benchmark Supreme Court cases like Reno v. American Civil Liberties Union, Ashcroft v. American Civil Liberties Union, and Ashcroft v. Free Speech Coalition further suggest that such onerous laws that would limit free speech on the internet are unconstitutional. As a reminder, Reno rendered the Communications Decency Act of 1996 unconstitutional as it significantly chilled online speech and solidified the safe harbor clause in Section 230 that is the de facto “First Amendment of the internet.”
I’ll keep you all posted as to the latest developments on content filtering proposals moving forward. It’s high time people realize much more is at stake than someone’s ability to wank to their iPhone.
Michael McGrady is a journalist and commentator focusing on the tech side of the online porn business, among other things.
https://www.techdirt.com/2023/05/24/the-stupidity-of-making-porn-filters-mandatory-on-mobile-devices-and-other-musings-on-reality/
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