Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute

In Opposition to HB 349, “An act requiring an obscenity filter to be enabled by default on electronic devices sold and activated in the state.”

March 22, 2023

Montana Senate Business, Labor, and Economic Affairs Committee

Chairman Small and members of the committee,

My name is Josh Withrow, and I am a fellow with the Technology and Innovation Policy team at the R Street Institute, which is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including the technology and innovation sector.

HB 349 requires every mobile phone or tablet activated or sold within the state of Montana to have a built-in “obscenity filter” that is enabled by default. Although the aim of the bill to protect children from exposure to obscene content is meritorious, a device-level content filter mandate is both technically infeasible and likely to be found unconstitutional because it poses an unduly broad burden on accessing speech.

From a practical standpoint, it is unclear how device manufacturers can be expected to enforce HB 349 as written. The manufacturer appears obligated both to determine every possible method by which obscene content might be accessed on a given device and to be able to make the determination as to what content is and is not obscene. This would presumably entail modifying the device operating systems to integrate complex filtering algorithms, which would have to be done to all devices nationwide at great expense. In addition, content filtering is not one-size-fits-all; a video streaming app, an e-reader app and a web browser are all quite different, and the built-in content filter would be required by law to account for all of them.

The U.S. Supreme Court considered a similarly broad duty to protect against the dissemination of obscene speech two decades ago in Reno v. ACLU, which resulted in a unanimous decision to strike down the majority of the Communications Decency Act (CDA) of 1996.[1] One of the court’s findings in Reno v. ACLU was that “The CDA’s burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act’s legitimate purposes.”[2] Similarly, mandating a new, device-level content filter is redundant with the many other methods of protecting minors from obscene content that already exist—some pre-built into apps, browsers and operating systems, and others which are easily available for parents to download.[3]

Forcing manufacturers to modify their operating systems to build in a content filter that every adult would have to figure out how to disable to have full access to the internet is far from a less-restrictive method to prevent children from accessing obscene content. HB 349 and similar laws will likely suffer a similar fate in court to the CDA.

The device-level content filters that HB 349 mandates will compete with the existing, diverse market for parental online safety tools that already exist. This will doubtlessly undermine investment and innovation in the online safety market, as many parents are likely to default to just accepting and trusting whatever filters device manufacturers can get approved by the government. Parental education on the resources that are already available to them to protect their children online would be a smarter and more effective way of protecting kids than placing the onus on device manufacturers.

Altogether, HB 349 posits a new government mandate that would create additional burdens for both device manufacturers and their users to solve a problem for which private solutions already exist. Rather than burdening every adult who buys a smart device with having to figure out how to disable content filtering on their device, the responsibility should lie with parents to configure as they see fit any device to which their children may have access. And ultimately, if enacted, the bill will likely end up struck down by the courts on First Amendment grounds, after costly litigation. For these reasons, we urge legislators to oppose HB 349.

Thank you for your time,

Josh Withrow
Fellow, Technology & Innovation Policy
R Street Institute
(540) 604-3871
[email protected]

[1] Reno v. ACLU, 521 U.S. 844 (1997), U.S. Supreme Court, June 26, 1997. https://supreme.justia.com/cases/federal/us/521/844.

[2] Ibid.

[3] See, e.g., K.G. Orphanides, “Five free parental control and content filtering tools you should know about,” Trusted Reviews,March 8, 2022. https://www.trustedreviews.com/opinion/five-free-parental-control-and-content-filtering-tools-4214714; Anthony Spadafora, “The best parental control apps for Android and iPhone 2023,” Tom’s Guide, last accessed March 21, 2023. https://www.tomsguide.com/us/best-parental-control-apps,review-2258.html.