Georgia Lawmakers Look To Go Down Porn-Censoring Unconstitutional Rabbit Hole

from the pron dept

While America is often portrayed as a hive of liberal debauchery, with a media environment heavy on skin and short on substance, unmentioned is a prudish strain that runs just as deep and as afoul of the mainstream. This hidden brand of puritanism rears its head in many ways, one of which is the unfortunate call to have technology companies block access to perfectly legal content in the name of protecting the gentle minds of the citizenry. Utah has attempted this in the form of calls to have phones come stock with filters to block pornography, full stop. And, while Utah is by no means alone in America in this endeavor, this sort of unconstitutional grab at the minds of the people is most often attempted in the more conservative, and religious, states. This, of course, despite all of the collateral damage to educational and otherwise useful material that comes along with this sort of thing.

Yet the march against skin marches on. In Georgia, lawmakers have introduced a bill that would mandate filters on mobile devices that allow internet access.

State representative Paulette Rakestraw has filed House Bill 509 which would require retailers to put a “digital blocking capability” on some devices to make “obscene material” inaccessible. Retailers, in this code section, would mean anyone who SELLS or LEASES a device that allows content to be accessed on the Internet. The “blocking capability” is required to make porn, child porn, revenge porn, websites about prostitution, and websites about sex trafficking all inaccessible. Retailers would be required to have a telephone line where consumers could call to report complaints and it prohibits retailers from giving consumers intel on how to deactivate the blocking program themselves.

There's a lot to say about why this sort of thing is dumb, so let's just rapid fire them off. First, the inclusion of porn generally, as opposed to the requirement to block the more illicit content discussed above, renders this unconstitutional, as I mentioned above. That pesky First Amendment tends to stand in the way of government attempts to prohibit otherwise perfectly legal content and speech, of which pornography is generally included. The rather cynical way this general block on pornography is wrapped in the cloak of attempts to block the familiar enemies, like child porn and trafficking sites, adds to how slimy this all is. And this final sentence of the paragraph is where I would typically mention how easily circumvented these types of filters tend to be, except one of the proposed law's other provisions appears to try to tackle that in a way that requires further discussion.

Here is the real humdinger: If you are 18 years of age or older, request in writing that you would like to deactivate the program, acknowledge in writing that you understand the dangers (yes, that is really the word they use) of deactivating the program, and pay a $20 fee, you can have the program removed from your device.

You read that correctly. If, as a reasonable, responsible, American adult, you wish to look at obscene material in the privacy of your own home, you have to tell the grandmother at the Wal-Mart check out line that you would like her to delete the program so you can enjoy the device to the fullest extent.

This puts the government in Georgia in the uncomfortable position of not only attempting to enact an unconstitutional law, but it also requires them to be grifters off of those that would enjoy the same material it seeks to block. Making $20 from adults who want to circumvent the filter required by the law means the state of Georgia stands to profit financially from its citizens' masturbation habits. And, while that's plainly just gross, it's the attempt to keep the public from knowing how to circumvent the filter themselves that makes this all look like a self-pleasure-tax than anything resembling an attempt to block illicit material. After all, how needed is a filter to block obscene material if the government is willing to allow it not to be blocked for the cost of a pizza?

Where the censorship of legitimate and legal speech is pretty plainly unconstitutional, specifically taxing a form of speech is painfully so.

Porn is free speech. This is a tax on free speech. A tax on people who wish to exercise and enjoy free speech. Here’s another thing: By taxing porn, the government is condoning the industry, “allowing” it to exist, if you will. If the risks are SO high for sex trafficking and child pornography, then all porn should be illegal.

The fact that there is no advocacy for eradication of porn just reiterates the point: This isn’t about protecting anyone or helping anyone. It’s about taxing a vulnerable industry that is considered immoral. There is less resistance. After all, who is going to speak out in favor of porn?

Well, I will, for starters. And I will do so unashamedly. Pornography itself has all kinds of useful and healthy applications, all of which have been documented scientifically. This isn't to say there are no downsides, or potential downsides, but there is a healthy application for pornography and the activities that tend to go with it. On top of that, giving government the power to block that which is deemed to be "obscene" or "pornographic" is rife with problems that far outweigh any potential benefits in censoring it. The public is not served living at the pleasure of a government that can decide what is good for it. And taxing it, not out of existence, but into legitimacy, is as crass and cynical a thing a local government can do.

Which is likely all besides the point. This, again, is unconstitutional, which should be the end of the discussion.


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  • icon
    That One Guy (profile), 17 Mar 2017 @ 8:32am

    "It is a threat to society itself!" "Here's twenty bucks." "Enjoy your threat to society itself."

    So porn is such a huge problem in the state that it requires nothing less than mandatory filters to combat it's vile evil, yet for $20 said vile evil can be enjoyed freely.

    I'm going to second a comment made the last time this came up, and mentioned in the article itself, and say that this isn't so much an 'anti-porn' bill as an 'easy taxes' one, where the 'keep porn from corrupting the innocent youth' is just the paper-thin justification for introducing a new stream of revenue, under the idea that no-one will be willing to publicly defend porn such that the tax will be implemented without any significant pushback.

    They aren't treating porn as a threat so much as a paycheck, a source of easy money.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2017 @ 9:59am

      Re: "It is a threat to society itself!" "Here's twenty bucks." "Enjoy your threat to society itself."

      Individual citizens are easier to extort than Intel, Microsoft, or Apple.
      Individual citizens are easier to extort than Target, Walmart, or whatever.

      Taxes are scary, un-Republican, and can get them unelected (or vigorously opposed in the next election).

      Therefore, Definitely Not Taxes that Protect Family Values and draw money from constituents are the way to go.

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 17 Mar 2017 @ 10:14am

      Re: "It is a threat to society itself!" "Here's twenty bucks." "Enjoy your threat to society itself."

      I wish I shared your optimism over their motives. Even tax collection has some public benefit.

      This is a gift to the lawyers who will make a fortune off lawsuits against phone manufacturers over a law that's impossible to comply with.

      There are no rules on where porn gets uploaded. Any forum, any new URL could suddenly have it. Even with constantly updated cloud-based URL filters there's simply no reliable way to block it. Nor is image recognition reliable.

      There's no agreed rules for what constitutes porn. Past parental filters tended to block family planning, crisis help lines and whatnot, while allowing NRA sites. Right now on the CBC News main page you can see a fully nude 10yo girl. (Nick Ut, who captured the Pulitzer Prize winning photo of children fleeing after an aerial napalm attack in Vietnam, died this week.)

      The only way to comply is to block EVERYTHING by default, and approve only sites on a case by case. Wikipedia, many art sites, many news sites and most forums and blogs would never be approved.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Mar 2017 @ 11:07am

        Re: Re: "It is a threat to society itself!" "Here's twenty bucks." "Enjoy your threat to society itself."

        That might be an effective way to protest the ban... Block everything, let legislators and angry citizens turn it over for a bit.

        reply to this | link to this | view in chronology ]

    • identicon
      AricTheRed, 17 Mar 2017 @ 10:40am

      Re: "It is a threat to society itself!" "Here's twenty bucks." "Enjoy your threat to society itself."

      They should do this like the 1934 NFA $200 tax stamp for Full Auto Firearms, Sound Suppressors, and stuff. Make the tax like $3,600, then in a hundred years vintage 2017 Georgia porn viewing registered iPhones will be super valuable, and the transfer tax a negligible amount.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 9:04am

    ditto Oklahoma

    What we have here is a classic case of someone writing a "bill" and then passing it around to any elected official to get it passed.

    I bet the wording of the GA and OK bills are verbatim.

    http://www.oklegislature.gov/BillInfo.aspx?Bill=HB1472&Session=1700

    reply to this | link to this | view in chronology ]

    • identicon
      Sok Puppette, 17 Mar 2017 @ 9:44am

      Re: ditto Oklahoma

      Yep, they're pretty close to the same, definitely to the point where they had to be cut and pasted.

      State legislators are mostly morons, so you can usually find one to introduce any garbage you want...

      reply to this | link to this | view in chronology ]

  • icon
    Mark Murphy (profile), 17 Mar 2017 @ 9:27am

    Who Will Make These Devices?

    Speaking from an Android standpoint, what they want is not even practical in terms of product distribution. It would require manufacturers to:

    • Create a custom Android build that has this filtering built in

    • Distribute models with that custom Android build to Georgia retailers

    • Realize that this sort of mandatory filtering runs counter to enterprise security, and so the sale of Georgia-specific devices will be limited to consumers (and enterprises run by idiots)

    Few manufacturers will bother, given the resulting projected sales numbers.

    Retailers cannot add the filtering themselves in general, because part of the "on-boarding" experience for an Android device frequently involves accepting a EULA. Retailers cannot accept a EULA on the consumer's behalf. Plus, any retailer-installed filters could be bypassed readily by people with the technical skills of your average American teenager, either on their own or via anti-filtering tools that will proliferate rapidly.

    reply to this | link to this | view in chronology ]

  • icon
    Joshua Jones (profile), 17 Mar 2017 @ 9:32am

    Wait

    Guys, guys, guys, hold on.

    We have to do it for the kids.

    reply to this | link to this | view in chronology ]

  • identicon
    Sok Puppette, 17 Mar 2017 @ 9:40am

    You forgot some...

    The "shall not provide to a consumer methods, source code, or other operating instructions" gag order is itself an unconstitutional prior restraint on speech, and probably a more dangerous one than the porn restriction itself.

    Trying to restrict any site that might "facilitate prostitution and the trafficking of persons for sexual servitude" is surely unconstitutional because of the sheer breadth of what you could read "facilitate" to mean.

    Delegating the decision about what to block to a private company with no meaningful oversight is a huge due process issue.

    The fact that it requires something that's technically impossible might also be a wee little due process issue. And if you defy the clear language and read it down to require only what is technically possible, then it fails on vagueness.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 9:53am

    Freedom

    I've always heard that freedom has a price. Just never had a real amount attached to it.

    reply to this | link to this | view in chronology ]

  • identicon
    Wyrm, 17 Mar 2017 @ 9:53am

    Good article, though lacking emphasis on another large and common flaw in such attempts: who decides what is a porn site, and how is that list maintained and supervised?

    Such attempts are typically abused, with several political opponents' sites "mistakenly" ending up in the list.

    reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 17 Mar 2017 @ 9:57am

    Obamacare set a nasty precedent

    When Obamacare came out with a mandate to buy what the government tells you to buy or you will be taxed and that was immediately thrown out for being unconstitutional, that set a nasty precedent that the government can force you to do something or tax you.

    I'm not really surprised to local and state governments extrapolate that their laws are constitutional as well.

    And... don't forget... THINK OF THE CHILDREN!

    reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 17 Mar 2017 @ 10:14am

      Re: Obamacare set a nasty precedent

      Umm... this is WAY different then Obamacare in so many ways.

      • The Federal government and States have different powers. What's legal for one to do isn't necessarily legal for the other to do.

      • The mandate wasn't crafted to be a tax to raise money, it was crafted to push people to get health insurance to prevent the market from spiraling out of control (due to people only buying insurance when they're sick and then canceling it). There's no pressing issue that not taxing 'porn' will cause to get worse.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2017 @ 10:20am

      Re: Obamacare set a nasty precedent

      But the ACA mandate had a practical reason. You need as many people in the insurance pool to drive down the cost - if you're not going to go whole hog into a single payer system.

      This isn't close to the same as that situation.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 10:33am

    If we are going down this road, I would argue that trying to limit 'dangerous' porn is no different than trying to limit 'hate speech' or 'micro-aggressions'.

    It comes down to perspective, and limiting any speech based on another's perspective is never good. Context plays too important a role to allow the formation of any arbitrary rule to limit speech, be it porn or slang.

    For example, taking a picture of a naked newborn baby is not, for most well-adjusted people, considered child porn. I am sure many of you have just such a baby picture. I can't tell you how many movies there are of someone holding up their newborn.

    It also seems to be OK to use derogatory terms for a minority group, as long as you are a member of that group. How many rap songs use a word that most people would be reviled for using?

    There is no shortage of people wishing to force their idea of morality on either side of this issue, or any for that matter.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 11:10am

    American Taliban strike again, this is only the beginning.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 12:56pm

    Bills like this usually aren't meant to last, or they're meant to fly under the radar. The bill drafters, ostensibly moral crusaders (often while having several mistresses of their own), are after votes. When election time comes around, they can point to a defeated bill as being a champion of "Family Values" and "Protecting the Children" because the average conservative voter doesn't realize and/or doesn't care the First Amendment covers everyone, not just the self-righteous (ever notice that fundamentalists and evangelical Christians have a persecution complex?). When these laws are inevitably struck down, they can automatically count on extra votes from those conservative voters (especially down in the South) that already distrust the morally corrupt Federal Government, because that smut has no place in a moral society!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2017 @ 3:28pm

      Re:

      That those who would impose 'morals' on others have none of their own is common, they are superior being after all, and that which corrupts other has no effect on them.

      reply to this | link to this | view in chronology ]

  • icon
    Advocate (profile), 17 Mar 2017 @ 1:25pm

    Anyone notice that i order to sell your non-Georgia phone on Craig's List you have to become the Porn Police?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 1:26pm

    Seems like a pretext for Sharia law to me. Fucking Oklahoma Muslims!

    Oh wait...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2017 @ 5:35pm

      Re:

      These folk are very much against allowing Sharia law in their backyard ... while at the same time they are quite happy to implement their very own version of exactly the same thing. They are blind to their own hypocrisy.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Mar 2017 @ 2:02am

        Re: Re:

        It's the true religion problem:
        My religion is the one true religion, and therefore I can impose it on people with different beliefs. They are wrong and need saving, because my God says so.

        reply to this | link to this | view in chronology ]

  • identicon
    dramarama, 17 Mar 2017 @ 1:57pm

    Federal Preemption for the win

    I get why everyone is all over the First Amendment problem here. That's the glamorous issue.

    BUT ... has anyone thought about good old Federal Preemption? Some (though not all) courts have held that FCC regulations "occupy the field" for regulating the features of mobile devices. If each state can set its own requirements for mobile devices, that would thwart the U.S. government's interest in a unified system.

    Not as headline-grabbing as First Amendment. But if you're looking to kill an obnoxious state-level telecom reg, Preemption is your best friend.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 17 Mar 2017 @ 2:12pm

    Wrong Issue

    The crisis the lawmakers missed is that a pizza costs $20. Have they NO shame?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 2:38pm

    GA

    Georgia... the same state that has a quite ridiculous sodomy law until law ruled unconstitutional, under the state's constitution, in 1996. It must be something in the dirt or water that make GA so dang goofy.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 17 Mar 2017 @ 3:12pm

    Sheesh, what a bunch of wankers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Mar 2017 @ 7:04pm

    A porn story? Of course it's Timothy Geigner, aka Dark Helmet, of course.

    Adept at typing with one hand.

    reply to this | link to this | view in chronology ]

    • identicon
      Cowardly Lion, 18 Mar 2017 @ 7:27am

      Re: A porn story? Of course it's Timothy Geigner, aka Dark Helmet, of course.

      "Adept at typing with one hand."

      Well, you're doing really well so far. Keep it up.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Mar 2017 @ 11:56am

    I'm not sure how they think this will work... do they mean to control ALL the phones everywhere? As in, if I live in Georgia and order a phone from Amazon or eBay or any other non-Georgian cell phone seller, phone-sellers in every other state and nation are expected to insert that handy-dandy anti-porn device or software when delivering to Georgia? How do they mean to control this?

    Do they seriously think everyone moseys on down to their local cell phone brick-and-mortar on the corner to buy a phone? Because I bought my phone at a reduced price from my carrier, and I believe they're in California. It was shipped to me. I don't think my state government has any way to intercept a phone I've purchased online, how does Georgia think that will work?

    Why do they propose laws they cannot constitutionally enact and couldn't enforce if it did go through?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Mar 2017 @ 3:12pm

    No sex please, we're not British

    Here's some gun porn instead as it is your God given right via the Constitution.

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 20 Mar 2017 @ 6:33am

    Psychology Today

    Oh, Karl, "Psychology Today?" That lost its credibility when it published this bilge: https://www.psychologytoday.com/blog/crime-time/201605/copyright-is-free-speech

    Can't you find a study that supports your contention elsewhere, mate?

    reply to this | link to this | view in chronology ]


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