New Utah Law Puts State Back In Marketing Spotlight

A diverse group of merchants, trade organizations, civil liberties organizations and small ISPs are suing the state to overturn a statute aimed at protecting children from online pornography.

The suit claims the law, which was enacted in March and goes into effect in phases, violates free speech, the Constitution’s Commerce Clause, and may have severely damaging consequences for Web sites that have nothing to do with pornography.

The statute, HB 260 or “Amendments Related to Pornographic and Harmful Materials,” requires Utah’s attorney general to establish a database of Web sites containing content he deems harmful to minors. The statute also requires ISPs to block access to these sites when subscribers in Utah request it, or to provide filtering software to the sites.

The law requires Web site operators to rate their own content and provides unspecified criminal penalties for the distribution of “material harmful to minors” on the Internet.

“The problem is that the law is written so vaguely that no one knows how it’s going to be enforced,” said co-counsel for the plaintiffs Wesley Felix of the law firm Bendinger, Crockett, Peterson, Greenwood and Casey.

If a site search by a minor results in a contextual ad supplied by a third party for an objectionable product or service, who would responsible for distributing that material?

“Who knows?” said Trevor Hughes, attorney and executive director of the E-mail Service Providers Coalition.

A representative for Utah Attorney General Mark Shurtleff promised ClickZ News he would have someone call back for comment, but failed to do so.

Plaintiffs in the suit, which was filed in June, include the American Civil Liberties Union of Utah, the Association of American Publishers, the Publishers Marketing Association, The Sexual Health Network, the Comic Book Legal Defense Fund, some Utah-based independent booksellers and others.

Betsy Burton, owner of the King’s English Bookshop in Salt Lake City, Utah, and lead plaintiff in the case, said she’s concerned about the effect the law may have on her Web site, which contains descriptions and cover art from books some may view as harmful to minors.

“Unless I limit the Web site to children’s books or attempt to exclude children from our Web site, I risk the danger of a criminal charge,” she said.

Moreover, the law doesn’t outline an appeals process for Web site operators who disagree with the Utah attorney general’s assessment that their content is harmful to minors.

“There is no doubt in my mind that most of this piece of legislation will be invalidated,” said John Morris, co-counsel on the suit and a staff attorney with online advocacy group Center for Democracy and Technology. Morris added that if it is left intact, the law “would unavoidably lead to the blocking of innocent Web sites.”

The CDT successfully challenged a similar law last year in Pennsylvania. It required Internet service providers serving any citizen in the state to block Web sites with content deemed by any local judge, at the behest of the state attorney general or county district attorney, to be harmful to minors.

Approximately 500 blocking orders over 16 months issued as a result of Pennsylvania’s anti-online-pornography law resulted in the inadvertent blocking of 1.2 million non-targeted sites that shared IP addresses with the targeted sites.

The law was overturned in September by the U.S. District Court for the Eastern District of Pennsylvania. Morris expects Pennsylvania to serve as precedent for the Utah battle.

Utah has gained a reputation for passing well-intentioned but catastrophic laws related to the Internet. The most recent is the Child Protection Registry, effective this month.

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