MONTGOMERY, Ala. – Of the numerous iterations of the “Human Trafficking Prevention Act” (HTPA) I’ve read since the proposed legislation began being debated by various state legislatures around the country, the version under consideration in Alabama seems the most problematic of the bunch.
While Alabama’s HB 428 has yet to adopt the HPTA moniker, its basic provisions are a lot like those found in similar bills under consideration in Georgia, North Dakota and other states listed on the HTPA website as considering the proposal.
Among the items HB 428 has in common with HTPA-like proposals in other states is a proposed $20 fee for deactivating content filters on internet-connected devices subject to the law (Alabama’s version generously allows sellers of such devices to add their own “reasonable filter deactivation fee” on top of the $20, without defining what “reasonable” means), extremely broad definitions of terms like “computer” and “data communications device” and criminal sanctions against those who sell devices in violation of the law’s filtering requirements.
As attorney Larry Walters noted in his comments to me about the Alabama version of the HTPA, “there are so many problems with these iterations of the HTPA, it’s hard to know where to start.”
We must start somewhere, though, so let’s start at the top: The serious issues a bill like this is going to face, once court scrutiny begins.
“The First Amendment violations and chilling effects on protected speech are massive,” Walters said. “The inability to accurately determine what content actually needs to be blocked, and the herculean effort required to identify every piece of content on the internet that should be included in the filter, imposes an intolerable burden on the First Amendment. Naturally, there will be a tendency to over-censor, which creates the chilling effect.”
In part, what Walters is referring to is the bill’s prohibition of selling any device “unless it contains an active filter that blocks or restricts internet access to sites containing any of the following: Obscene material…. Child pornography…. Images used for sexual cyberharassment.… Solicitation or offers for prostitution, assignation or human trafficking.”
In other words, the law would make it illegal for anyone in Alabama to sell an internet-connected device that isn’t capable of detecting materials considered “obscene,” despite the fact a legal determination of obscenity can be made only by a trier of fact (usually a jury, although obscenity bench trials can and do happen).
Making matters worse, HB 428 appears to expand on the definition of “obscene material” by adding to the familiar Miller Test the verbiage “facilitates or promotes prostitution, assignation, human trafficking, or sexual cyberharassment.”
Curiously, the drafters of HB 428 also felt it necessary to specifically exempt a class of images I’ve never heard of being subject to obscenity prosecution in the past.
“The term (obscene materials) does not include material that depicts a mother who is breastfeeding her baby,” states section 9(4).
OK then. I’m glad we cleared that up.
Of course, the constitutional pitfalls of HB 428 don’t stop there, in part because of the incredibly broad scope of the bill. Standing out as another example of extremely problematic language is the section defining the level and class of offense committed by those who sell a device without the filter required under the bill.
“A person that sells a device without a filter to a minor commits a Class C felony,” Section 4 states. “A person that sells a device without a filter to an adult commits a Class A misdemeanor.”
Note the bill doesn’t say the offender must have actual knowledge the purchaser is a minor to be in violation of the law, nor does it limit the geographic scope of such illicit sales to the area within Alabama’s borders.
The significance of the latter problem is not trivial, as Walters explained.
“The potential applicability to individual sellers, who may be selling to buyers in other states, creates dormant commerce clause problems, because of the substantial burden on interstate commerce,” Walters said.
The bill also includes a puzzling stipulation concerning the award of “reasonable attorney fees and costs.” What’s confusing isn’t this phrase, of course, but to whom the bill suggests the fees and costs would be awarded.
“In an action under subsection (b), the court may be awarded reasonable attorney fees and costs,” states section 7(c) of the bill.
This would be an unusual development indeed, as “a court would not award attorney fees and costs to itself,” Walters said. (To be fair, Walters added this was likely a typo which “might be cleaned up during the hearing process.”)
There are many other problems with HB 428, of course, but the above seems like enough to cause the governor’s legislative advisors to pull out their hair while reading the thing, should it eventually land on Robert Bentley’s desk in anything resembling its current form.
Most likely, I think, this bill will either be unceremoniously shelved like its near cousin in North Dakota, or vetoed by Gov. Bentley on the advice of his office’s legal counsel, something even fairly kooky governors have been known to do when clearly unsustainable legislation comes their way.
In the meantime, at least HB 428 makes for some entertaining (and somewhat frightening) reading for law nerds and policy wonks. Here’s to hoping such a purpose is the only one it ever gets to serve.
