The Law of Holes, although simple, is quite profound: If you find yourself in a hole, stop digging. Unfortunately, in an effort to protect children online, states just won’t stop digging.
Keeping kids safe online is important. No one disagrees with this motive.
But recent, dramatic measures by state legislatures aim to regulate how the internet may be accessed. And courts are shutting many of these efforts down. California required digital platforms to conduct “data protection impact assessments” on all website features that could be accessed by minors, but was enjoined in federal court. Florida’s social media regulations were also ruled unconstitutional. Arkansas’ effort was also found to violate the Constitution. Texas’ laws have remained in place, but the Supreme Court will be hearing oral arguments whether it (and Florida’s similar law) violate the First Amendment.
Given this backdrop, it would be wise for states to take a beat and understand how deep the hole they dug has become. Instead, Utah was hit with two different lawsuits over its effort to ban minors from accessing social media without parental consent, and legislators are grabbing a bigger shovel.
SB104, currently before the Senate Judiciary Committee, would require any new mobile device, a tablet or smartphone, activated in the state of Utah to contain a filter for obscene content. If the user at the time of activation is determined to be a minor under 18, then the filter must be activated or the manufacturer is held liable.
Sen. Todd Weiler, the sponsor of the bill, seems to be aware of the law of holes. Because at the conclusion of this week’s hearing on the bill, he said it “may need a little bit more work.”
Legal problems abound.
The bill would require the determination of the age of every user upon activation of a new device or account in the state of Utah. Even though it’s explicitly kept out of the bill, the best way to determine age is currently a government issued ID. In effect, this bill is the government requiring the presentation of papers before Utah citizens can use one of the most pro-speech, pro-education, pro-business technologies humanity has ever known. This will be a legal mess.
The other top legal challenge could be around the word “obscene.” Should this bill become law, the filter may allow indecent content while blocking the obscene. And what one parent or person might consider obscene might actually just be indecent. Or it could swing the other way and block out legitimate content in an effort to avoid violations, blocking minors from works of art or historical photographs that are incorrectly labeled. Either way, a legal mess.
The technical and practical challenges are even more numerous. To name just one, how would this law affect a secondhand adult’s tablet getting passed down to another adult in the family? A new account would be created for the new adult user, thus triggering, according to the current draft, a need to verify the age of that new user of the secondhand tablet. This would require a qualified representative to verify the user’s age, thus making true ownership of a mobile device obsolete without government approval.
Utah’s policymakers should proudly be leaders on innovative policies. Yet when it comes to policies like those in SB104, innovation might not be the right approach. This may only put Utah’s citizens into a deeper and more expensive legal hole. Utah’s policymakers should just stop digging.
Deseret News