The Human Trafficking Prevention Act (SB 363) has been introduced in the Kansas legislature and referred to the state’s Senate Judiciary committee. It is similar to other pieces of legislation being considered in numerous states across the U.S. this year (as well as last) that would mandate obscenity filters for the Internet.

At bottom, SB 363, if enacted, would prohibit an Internet service provider (ISP) from selling any product or service that enables a consumer to access the Internet, “unless such product or service contains an active and operating technology protection measure that renders obscene content inaccessible.” Obscene content includes child pornography, revenge porn, porn websites, and websites known to facilitate human trafficking.

Consumers, though, would be able to disable the content filter after paying a small, one-time deactivation fee of $20. To turn it off, consumers also would have to present identification verifying they are at least 18 years of age, and sign a written warning acknowledging the potential danger of deactivating the filter. ISPs wouldn’t get to keep all of the filter deactivation fee money. They would be required to remit half of the money received from deactivation fees to the state treasurer each quarter, who would then deposit the money in the state treasury.

Requirements to filter obscene content were adopted at seemingly all levels of government in the early days of the Internet, and continued to be as evidenced by SB 363. However, they don’t last. Laws imposing content filters fail because they end up blocking speech protected by the First Amendment. SB 363 contains a safeguard intended to ensure the filtering the bill imposes is not overly broad. Whether an ISP has its own “technology protection measure” that blocks obscene content or uses third-party software, there must be a website or telephone line associated with the filtering technology that consumers can use to report content that is not obscene that is being blocked. Presumably the content will then be taken off the ISP’s obscene blacklist. Nevertheless, it’s doubtful this safeguard would work, and even less likely the safeguard would save the bill from being struck down as unconstitutional.

The Kansas Office of the Attorney General and Budget Office have recognized that SB 363 is a bad idea. The Kansas Budget Office’s fiscal note for SB 363 contains the following analysis:

The Office of the Attorney General (OAG) indicates that enactment of SB 363 could result in lawsuits regarding freedom of speech, privacy, interstate commerce, and other constitutional provisions. The OAG indicates litigation could ensue in federal court, which would require it to defend the bill with in-house attorneys and remove those attorneys from other state legal matters. Additionally, the OAG estimates that the state could be ordered to pay up to $500,000 in attorney fees and costs in FY 2019 to successful challengers of the bill if litigation began shortly before or at the time SB 363 was enacted. The OAG also indicates that the bill could increase revenues through enforcement actions that the OAG would take regarding violations of the Kansas Consumer Protection Act and the $20 Obscene Material Access Fee. However, the OAG indicates any amount of additional revenue cannot be estimated because the number of violations and the number of users who would pay the access fee is unknown.

Like other laws and regulations attempting to prevent access to obscene content on the Internet, SB 363 and the model legislation that spawned it contain awful policies. State lawmakers seem to get it. Every attempt at passing similar legislation last year in other states failed. SB 363 will undoubtedly fail. For more information on the state legislatures that are considering some form of the Human Trafficking Prevention Act, see this Electronic Frontier Foundation website.