The Dirty Secret Behind Porn Filtering Laws? Content Filtering Doesn’t Work.

A couple of years ago, Utah became the first state in the union to mandate that content filters be enabled on all mobile devices sold by manufacturers like Samsung, Apple, Lenovo, or TCL. The measure was a hit among the anti-porn crowd because it created a precedent for other states which sought to curtail the viewership of otherwise legal, consensual, regulated pornography among minors. The Utah law, House Bill 72, was passed through a religious-conservative state legislature and signed into law by Republican Gov. Spencer Cox back in 2021. Since then, the law has sat dormant.

That's because House Bill 72 states that the content filter mandates can't enter into force until five states have similar laws in place. That means anti-porn activists in Utah are watching closely for other state legislators to fall for the fear that just because a thirteen-year-old has a cell phone, they're all of a sudden going to look up hardcore porn rather than waste hundreds of dollars on Robux.

There's a (super unsurprisingly) widely held belief that no kids under the age of 18 years should watch porn. But if some do, we, as a rational society, can adopt non-punitive measures to engage in education and prevention. But content filtering mandates don't do that. At all..

Lawmakers in eight other states have proposed laws that require all mobile devices and tablets sold in a state to have the operating system's built-in content filters enabled or, alternatively, an anti-porn" filtering software pre-installed at the point of purchase. Based on model legislation proposed by advocates of the somewhat obnoxious National Center on Sexual Exploitation, the intent of the bills is to prevent minors from viewing age-restricted materials, like pornographic videos.

The intent may be commendable, but the outcome is a complete mess. First, there are clear constitutional issues. Second, such laws are nearly impossible to enforce. Last and most importantly, there is effectively no scientific or legal evidence that suggests online content filters actually work. Content filters appear to be inconsequential in whether minors view age-restricted content.

NBC News recently reported on the legislative drive in these eight states to implement laws that are similar to Utah House Bill 72. Lawmakers in Florida, South Carolina, Maryland, Tennessee, Iowa, Idaho, Texas, and Montana have introduced a variety of content filtering mandates with varying degrees of severity and punishment for manufacturers and users who fail to comply.

Out of the eight states, the bills in Montana and Idaho are the only ones to have seen some sort of traction to date. The Montana proposal highlights the lack of knowledge and concern when it comes to any sort of mandate on restricting protected forms of expression on the internet.

A cursory review of the language in the Montana bill, House Bill 349, depicts a regulatory scheme that would require an electronic device" sold in Montana to be sold with an obscenity filter" installed. The only means to disable the obscenity filter would be a passcode that is provided by the manufacturer to an adult or the parents.

According to the bill, an obscenity filter" is defined as software installed on an electronic device that is capable of preventing the electronic device from accessing or displaying obscenity... through the internet or any applications owned and controlled by the manufacturer and installed on the device." Obscenity is defined based on existing Montana statute. And, it's important to note the definition of obscene" is quite a bit broader than federal law including a description of normal ultimate sexual acts" that appeals to the prurient interest in sex"

The obscenity filter requirement is defined to compel a device manufacturer to manufacture an electronic device that, when activated in the state, automatically enables an obscenity filter that:

(1) prevents the user from accessing or downloading material that is obscene to minors on mobile data networks, applications owned and controlled by the manufacturer, and wired or wireless internet networks;

(2) notifies a user of the electronic device when the obscenity filter blocks the device from downloading an application or accessing a website;

(3) gives a user with a passcode the opportunity to unblock a filtered application or website; and

(4) reasonably precludes a user other than a user with a passcode the opportunity to deactivate, modify, or uninstall the obscenity filter."

In order to remove the filter, the manufacturer must provide the code to disable the filter. Manufacturers cannot, per the bill, engage knowingly in reckless disregard" of the law if a passcode is given to a minor or if a device is sold without the content filtering software installed at the point of sale. Violators of the law would face civil action and could be subject to a new tort or class action for violation of the law. By such a standard, this could lead device manufacturers to completely block the sale of their products in Montana due to the regulatory burden or completely change their marketing and sales approach at potentially great cost to not only the device maker, but to the retailers, cell phone service providers, ISPs, and consumers. Plus, this is a significant breach of the federal government's supremacy over regulating interstate commerce between other U.S. states and foreign governments which have no such regulation in place. But, that would be the least of their concerns.

As it's currently drafted, Montana House Bill 349 could morph into a de facto age verification mandate. Samir Jain, VP of policy at the Center for Democracy and Technology, pointed this out when he was asked about this particular language by NBC News, saying that such language could lead to device manufacturers collecting age and identity data from potential customers just to simply unlock the pre-installed content filter. This could require a form of government identification or a valid credit card number.

There are no restrictions as such on how providers can then use this data for other purposes. So even the sort of age verification aspect of this, I think, both creates burdens and gives rise to privacy concerns," Jain told. NBC News, adding that the policy structures in the Montana bill are simply crude mandatory filtering."

Crude, indeed.

Perhaps even more important than any of the above concerns: there's no successful implementation of this sort of policy in the U.S. or Western Europe. Even if this whole scheme were to become law, the chances of it working as intended are quite slim, if not zero. In 2018, researchers at the Oxford Internet Institute found that content filters aren't consistent and could lead to the under-" and over-blocking" of content that is either legitimately obscene to minors or is actually information dealing with health education, LGBTQ subject matter, or in dealing with adolescent romantic relationships. This research was conducted at a time when the United Kingdom was considering a national filter on porn.

Although this position might make intuitive sense, there is little empirical evidence that Internet filters provide an effective means to limit children's and adolescents' exposure to online sexual material," write the researchers, Oxford's Victoria Nash and Andrew Przybylski. It's wrongheaded to assume that a mandate on content filtering serves as a child protection measure.

Simply put: these porn filtering mandates won't work. Instead, these proposals will serve as vehicles for special interest groups that want to censor forms of speech, pornographic or not, that they don't like.

Michael McGrady is a journalist and commentator focusing on the tech side of the online porn business, among other things.