Masters of FUD

Move over Microsoft, there's a new master of FUD in town.  FUD. You know.  It's that well-recognized marketing technique common throughout the technology industry where spreading questionable information about a competitor's product, causes fear, uncertainty, and doubt in the minds of others.  Microsoft has been accused of this behavior for years, when it has fallen behind an innovative competitor.  Now FUD appears to be a key weapon against HB260.  HB260 addresses how Utah deals with "material harmful to minors" (e.g. pornography), particularly in an online world.  It's an innovative step to provide parents with more information and a greater ability to protect their children from the onslaught of pornography, and picks up where other states and the Fed have stumbled.

As the sponsor of HB260, I'm amazed to hear all the misinformation and inaccuracies reported in the Thursday/Friday news (and for that matter, since the bill was first introduced in February).  So, I thought I would try to provide some additional insights

Fiction  HB260 prohibits a Utah content provider from posting material on the web.
Fact:  HB260 does not prohibit any material from being posted on the web.  HB260 requires commercial Utah content providers to restrict a minor's access to "material harmful to minors," just as is expected in the physical world.  The typical technique in the physical world is age verification, but HB260 permits many other less restrictive methods, including the use of content label techniques (see  Internet Content Rating Association for an example).  Content tagging has been championed by many individuals, including Stanford Law Professor and Electronic Frontier Foundation boardmember Lawrence Lessig (see Porn Free:  Net Nanny, you're fired! Mandatory HTML tags can do a better job of protecting kids online.).  Content tagging is very straight forward, taking moments to embed the informational content tag within the website, and allows those that choose to filter to repond accordingly.  Utah content providers that utilize the new .xxx domain would also automatically comply with the access restriction requirements of HB260.

Fiction:  HB260 uses a different standard for "material harmful to minors" for materials posted on the web.
Fact:  HB260 did not change the existing statuatory definition for "material harmful to minors."

Fiction:  HB260 limits an adult's access to pornography.
Fact:  HB260 does not limit an adult's access to pornography.  If adults choose to access pornographic materials, they can still do so, even with HB260.

Fiction:  HB260 require Utah ISPs to block pornography from everyone.
Fact:  HB260 requires Utah ISPs to provide  filtering tools than can block "material harmful to minors" only for those consumers that request it.

Fiction:  Every site that deals in "material harmful to minors" will be placed on the adult content registry.
Fact:  The adult content registry would only contain sites that deal in "material harmful to minors" and that don't restrict a minor's access.  Some sites already limit a minor's access.  Content tagging is a very simple method that some sites already use.  Age verification is another technique also in use.  The new .xxx domains will also provide a very simple notification method.

Fiction:  It's unconstitutional for the State to limit minor's access to "material harmful to minors."
Fact:  The courts have ruled repeatedly that the State does have a compelling interest to restrict minor's access to "material harmful to minors."  The State needs to do so in a least restrictive manner.

Fiction:  HB260 is just like that law that was struck down in Pennsylvania.
Fact:  The law in Pennsylvania required all ISPs, at request of the State, to block all child porn.  A primary problem with the Pennsylvania law was that due to technology limitations, the State caused overblocking, resulting in other constitutional speech being blocked.  HB260 does not require filtering on behalf of the State.  HB260 requires Utah ISPs to provide filtering solutions for those consumers that choose to block "material harmful to minors."  If a consumer does not request use of a filtering solutions, the ISP does not need to provide one

Fiction:  HB260 restricts free speech.
Fact:  There are 3 classes of speech within this county:  (1)free speech, (2)restricted speech, and (3)prohibited speech.  Restricted speech places limitations on commercial speech and material harmful to minors (speech that is considered OK for adults, but not for minors).  Prohibited speech bans speech like child porn.  HB260 addresses #2.

Fiction:  HB260 is blatantly unconstitutional.
Fact:  HB260 involved hundreds of person hours (perhaps even more) in research and drafting.  It was review by more attorneys and technologists than I can remember, with significant technology industry involvement.  HB260 was reviewed by the Attorney General's office before passage.  It was reviewed and adopted by the legislature.  It was reviewed before being signed by the Governor.  If HB260 was blatantly unconstitutional we wouldn't be talking about it today  -- it never would have become law.  Now it will be court's turn to provide their review.  That's how the process is designed to work.

Enough for now.  More later.

Daily Herald: Utah sued over Internet porn law
Deseret Morning News:  Suit challenges Utah's anti-porn law
Salt Lake Tribune: Group: Utah Web porn law unconstitutional, too broad 
KSL TV: Groups Sue to Overturn Utah's Porn-Blocking Law
ACLU of Utah: Utah Businesses, National Trade Associations and Individuals Commence Federal Court Challenge to Unconstitutional Restrictions on Internet Speech
CNet News.com: The politics of .xxx
Fast Company: $ex $ell$

Child Online Protection Act Commission
LessigResnick.pdf

Comments

[Richard Miller]

Thanks for this clarifying post; I found it very helpful. I didn't realize until now that HB260 allows adult-content web sites to police themselves first, through content tagging and age verification, to avoid being listed in the government registry. While I wouldn't have disagreed with a more expansive government registry of adult sites, the fact that web sites can avoid being listed in the registry by policing themselves makes HB260 bullet-proof in my mind and makes the claims of the Utah ACLU and Betsy Burton seem ridiculous. Good bill.

[Reach Upward]

Great, informative post. This clarifies many of the issues that concerned me. Thank you for sponsoring this bill. Keep up the good work.

[Paul Stay]

John,

I was unaware that you sponsered this bill. Thanks for the informative post and clarifying the issues. And most importantly thanks for your representation and the sponser of this bill.