‘Incremental’ Utah Porn Block Raises Questions Over Governmental Overreach

A Utah bill requiring content filters to be turned on by default aims to reshape the way the nation regulates the Internet, particularly for minors.

Adult film actress Cherie DeVille is concerned Utah’s new content filter requirements are opening the door to allow greater government control of the Internet. (Credit: Ryan Dwyer)

(CN) — When Utah’s innocuously titled “Device Filter Amendments” bill circulated the state Legislature, opponents worried requiring content filters to be the default in new cell phones and tablets amounted to the first step in a larger plan to restrict access to adult content.

“This sets the precedent for saying, ‘Yes, we are accepting governmental control or governmental assistance in parenting our children, and governmental control in the types of content that we’re seeing,’” said Cherie DeVille, an adult film actress based in Los Angeles.

“I think the danger is that it could spread to other types of content, and then spread throughout the United States,” DeVille added. “This is just the first toe-dip in the water of governmental control over the internet.”

DeVille’s concerns aren’t unfounded. Proponents consider the law signed by Utah Gov. Spencer Cox on March 23 an incremental step toward national legislation, though bill sponsor state Representative Susan Pulsipher, a Republican, said she was only concerned about blocking minor access to explicit content.

“Many parents struggle to know how to turn the filters on appropriately to keep their kids safe from any material,” Pulsipher said. She introduced the bill after being approached by parents in her district. “This is not limiting in any way an adult’s ability to turn the filters off to have any content they choose, it only helps parents keep their children safe.”

Research published by Pew in July identifies protecting kids online as a major hurdle. 

Seventy-one percent of parents polled were concerned their kids spent too much time in front of screens. Of those parents, 84% believed in their own ability to monitor whether their kids were accessing inappropriate content.

The Beehive State law requires device manufacturers to enable filters to block content that is harmful to minors, defined in Utah as some form of “nudity, sexual conduct, sexual excitement, or sadomasochistic abuse,” which “taken as a whole does not have serious value for minors.”

“This is the first innovative effort to incrementally protect children by simply turning on filters that already exist in devices,” said Benjamin Bull, general counsel for the National Center on Sexual Exploitation. On a mission to fight everything from sexual assault to pornography and stripping, the D.C.-based nonprofit helped craft the law.

Screen shot of an iPhone 12’s content restrictions, which under Utah law would be turned on by default.

Before the new law takes effect in Utah, five other states must pass similar bills. Starting Jan. 1 of the following year, the law then requires device manufacturers to enable existing content filters in cell phones and tablets sold in Utah.

Utah is often seen as a pioneer in fighting pornography. Since declaring pornography a public health crisis in 2016, more than a dozen other states enacted similar legislation including Arizona, Idaho and Missouri.

Adults, lawmakers reason, will be given a code to turn off the filters once they prove their age. The law will not apply to devices already owned and in use, nor would it require individual tracking for compliance.

“The question of enforcement remains one of the main issues, along with the government imposition of unrequested controls on devices,” said Democratic state Rep. Elizabeth Weight, who opposed the bill in the House. “Even though parents [and] families can reconfigure the controls, the families I spoke to considered the controls should be initiated by parents, not government — ‘opt-in’ rather than ‘opt-out.’”

Proponents like Chris McKenna, founder of Michigan-based organization Protect Young Eyes, compare content limiters to installing seatbelts in cars, instead of leaving them in the trunk.

“There is a general fear right now, I believe, of government overreach. You know, Covid is a really complicated factor in all of this where state by state there have been different responses, different levels of lockdown and so I just think there’s a general weariness right now,” McKenna said. As a former youth minister and consultant for corporate financial compliance, McKenna said he is “pro-kid, pro-tech, protect.”

Some First Amendment scholars are watching the debate unfold from the sidelines.

“The Supreme Court has made clear that states may take steps to block minors’ access to some material that adults have a constitutional right to access but has also expressed concerns about laws that ‘burn the house to roast the pig,’” explained RonNell Andersen Jones, a law professor at the University of Utah.

“Proponents of the new law have emphasized the desire to send a message about the state’s commitment to preventing children from accessing inappropriate content. The goal is unquestionably admirable and tackles a problem that most people in the state really want to address,” Jones added. “The question is whether, given the current state of technology and the clear constitutional protection for some of the speech that might be implicated, the tool that the state has chosen is one that the First Amendment allows it to use.”

Both those for and against regulating Internet access say government intervention isn’t enough.

“This bill establishes filter requirements and enforcement mechanisms for tablets and smartphones. I think that it’s a positive step in the right direction,” said Titania Jordan, chief parent officer for Bark, a parental monitoring app headquartered in Atlanta.

“Tech companies have a fiduciary duty to turn a profit, they do not have to protect your kids, they are not responsible for raising healthy children and responsible digital natives,” Jordan said. “Do they care about kids? Sure, but if you think you can trust a platform to do the best job it can to protect a child, you need to think again.”

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