November 29, 2016

Bill would force internet devices to filter pornography, other ‘obscene’ material

A New Mexico legislator is getting on board with an effort to force manufacturers of electronics that connect to the internet to install filtering devices that would block online “obscenity.”

State Rep. David Gallegos, R-Eunice, told NM Political Report he plans to sponsor a bill that would do so in the upcoming legislative session, which begins in January.

The bill, called the Human Trafficking Prevention Act, is backed by a group attempting to introduce identical bills in the legislatures of at least 23 other states this coming year. Nine state legislators and 11 lobbyists are listed as members of the national group, which bears the same name as the legislation, according to the group’s website.

Gallegos said his previous attempts at curbing human trafficking got him interested in sponsoring this bill.

But a look at an unfiled draft of Gallegos’ legislation shows that it goes much farther than just dealing with human trafficking.

Among other things, the proposed law labels all devices that don’t install such filters “pornographic vending machines.”

Companies that sell electronic devices that connect to the internet without such filters are subject to criminal misdemeanors and can be prosecuted by the local district attorney or the attorney general.

The material that companies are supposed to filter is also unclear.

The bill lists child pornography, revenge pornography and online prostitution hubs as specific types of material that must be filtered.

But the draft of Gallegos’ bill also says devices must have the capacity to block anything labeled in New Mexico statute as “obscene.” Even this is unclear, as the state statute cited in the bill itself doesn’t define “obscene,” but instead terms like “harmful to minors” as any material that “is patently offensive to prevailing standards in the adult community.”

Free speech and digital rights advocates are lambasting the proposed legislation in New Mexico and other states as unconstitutional.

Adam Schwartz, an attorney with the San Francisco-based Electronic Frontier Foundation, denounced the legislation for forcing companies to filter “all kinds of things that are vaguely defined.”

“The internet is perhaps the most important channel for human connection now and maybe ever created,” Schwartz said. “Whenever the government tries to insert itself, it raises grave First Amendment concerns.”

But Chris Severe, a Utah-based attorney working on the legislation with the national group, said the bill as no different from laws that bar minors from purchasing adult magazines or viewing R-rated movies in brick-and-mortar locations.

Severe compared the bill to laws that require drivers and passengers in cars to wear seatbelts, arguing that it is written so it “doesn’t put the burden on the consumer.”

“In the auto industry, without a car there’s no car wreck,” Severe said.

Among the many questions the bill raises is whether viewing “obscene” material is harmful to people.

As currently written, for example, Gallegos’ bill would require New Mexico to declare all pornography a “public health crisis”—a designation that is supported at most by anti-pornography groups and political advocates.

Consumers, under the bill, would have the authority to turn the electronic filter off and view such “obscene” material, but only after making the request in writing and proving that they are 18 or older either in person “or through means that verify” their adult age.

Those who wish to turn off the filter must also pay a $20 opt-out fee “to help offset the secondary harmful social effects,” the proceeds of which would go to organizations that “fight human trafficking, domestic violence, sexual assault, child exploitation, divorce, and pornography,” according to the bill.

Another glaring question is whether such filtering technology exists and is capable of blocking all material defined in the bill.

“That’s part of the detail that I’m asking [the national group],” Gallegos, who said that the bill is in early stages and will likely change before it’s officially filed, said. “They’re presuming that it’s an easy switch on and off.”

Schwartz also questioned the effectiveness of digital filters.

“If people are doing research about breast cancer, suicide in LGBT teenagers, rape in prison, these are things that filters can make mistakes on,” he said.

Gallegos has introduced controversial legislation before.

Last year, he carried a bill that would have allowed business owners to cite their religious beliefs as a reason to refuse service to customers of their choosing. Civil liberties organizations like American Civil Liberties Union of New Mexico denounced Gallegos’ 2015 bill as “a blatant attempt at discrimination” that would have foremost targeted LGBT people.

Gallegos introduced this bill during a budget-only legislative session. Since Gov. Susana Martinez did not put the bill on the call, lawmakers never voted on it.