SAINT PAUL, Minn. – While it went largely unremarked at the time, back in early March the Minnesota legislature added the Land of 10,000 Lakes to the growing list of states considering a bill which would require all internet-connected devices manufactured, distributed and/or offered for sale or lease within the state to come equipped with the ability to block “obscene material.”
Additional authors and sponsors have been added to the bill in recent weeks, signaling that additional action, like in-committee debate and mark-up, or even a vote, may be forthcoming on the legislation.
Under HF 3281, or the “Human Trafficking and Child Exploitation Prevention Act,” it would be “an unlawful practice under section to manufacture, sell, offer for sale, lease, or distribute a product that makes content accessible on the Internet…. unless the product contains digital blocking capability that renders any obscene material…. inaccessible.”
The bill defines “obscene” the same way the term is defined under state law in section 617.241, a definition which essentially mirrors the three-prong “Miller Test” used in federal obscenity law.
As with similar (and similarly-named) legislation under consideration in other states, the bill describes what relevant device makers and vendors would be required to do under the law, without touching on the far more complicated question of how, exactly, a device can be made to block obscene materials before those materials have been adjudicated obscene.
Under the proposed Act, a person who “manufactures, sells, offers for sale, leases, or distributes a product that makes content accessible on the Internet shall: make reasonable and ongoing efforts to ensure that the digital content blocking capability functions properly; establish a reporting mechanism, such as a Web site or call center, to allow a consumer to report unblocked obscene material or report blocked material that is not obscene.”
While he offered the comments in connection with a bill being pondered by the Illinois legislature, recent feedback given by attorney Larry Walters is equally applicable to the Minnesota bill.
“It is true that obscenity is not constitutionally protected,” Walters said. “The obvious problem with this concept is that no product manufacturer knows, in advance, what material might be deemed obscene by some judge or jury somewhere in the country, applying some variant of community standards.”
As is the case with the Illinois bill, the proposed Minnesota act extends the required blocking beyond “obscene” materials, in that it would also require the built-in content filters to “ensure that all…. revenge pornography is inaccessible on the product” and “prohibit the product from accessing any hub that facilitates prostitution; and render Web sites that are known to facilitate human trafficking…. inaccessible.”
Unlike “obscene,” for which the bill at least offers a statutory definition, the proposed act doesn’t even attempt to define “revenge porn” – something the Illinois iteration failed to do, as well.
Of course, if the legislature’s goal is to create an environment in which device manufacturers and sellers feel compelled to create content filters which are over-inclusive, the linguistic imprecision of their bill may be just what the anti-porn doctor ordered.
“All of these similar bills share a common goal, to conflate the concepts of protected speech with illegal activity such as obscenity, prostitution, and human trafficking,” Walters said, in another comment which is equally applicable to both the Illinois and Minnesota versions of this bill. “By doing so, manufacturers of internet accessible products will be forced to err on the side of caution, and block sexually explicit media based on fears of potentially violating the law.”
It remains to be seen whether the Minnesota legislature will move ahead with the bill. Thus far, similar legislation in other states has never made it to the floor for a vote.
