In Defense of Kids - From the Desk of Senator Toews

A discussion of two bills seeking to address children’s exposure to pornography

THE TRAGEDY

Our kids are pornographically afflicted. A recent representative survey of US teens ages 13-17 found that 73% had watched pornography online, with 58% of respondents having stumbled upon it accidentally. The average age of first exposure was found to be 12. Pornography erodes mental health, especially for kids, contributing to hyper-sexualization, engagement in problematic sexual activity, and difficulty forming or maintaining positive, intimate relationships later on. There are also links to issues with brain development and functioning. One does not need a PhD to witness the grievous effects of kids being systematically introduced, and ultimately addicted, to sexual perversion. Unsurprisingly, platforms seem rather uninterested in combating this, and so it is incumbent upon us to act in defense of our children.

BACKGROUND

In the vein of Article III section 24 of the Idaho Constitution, the misdemeanor of disseminating material harmful to minors was added to Idaho Code in 1972. While at the time the threat came in the form of certain magazines and movies, the rise of the internet in the following decades thwarted the enforceability of the existing language. Fighting to protect the most vulnerable among us from obscenity remains within the valid role of government, and it is time to modernize our laws to do this coherently without infringing on liberty.

AN EFFECTIVE SOLUTION: CONTENT-BASED THIRD-PARTY AGE VERIFICATION

I helped craft a bill called the Online Child Safety Act (H498, formerly H448). This legislation empowers parents of children exposed to pornography online with standing to sue a content provider for a civil remedy, if the perpetrator has failed to take reasonable steps to ensure they are not providing such content to minors. Children are clearly a significant portion of the audience for such websites, lured in by ads, links and pop-ups within the apps they use. It is fair and right to hold platforms accountable for the harm that occurs when they allow kids access, and only tangible accountability will cause them to correct their evil conduct. This is by no means unprecedented; sellers are already fined if they give tobacco products to minors if failing to reasonably verify age, and age verification is also used for online alcohol sales.

This legislation also does not impose a specific age verification protocol. There are many ways to confirm someone is a legal adult, from engaging with commercially-available databases to checking if someone has a valid credit card. In the spirit of free market solutions and self-regulation; companies are free to innovate and seek the most cost-effective protocol that effectively prevents access to children.

Having been drafted with reference to existing successes, this bill does not sit in a vacuum. Montana, Utah, Texas, Arkansas, Louisiana, Mississippi, North Carolina, and Virginia have each passed similar bills (with bipartisan support!), and there have been significant results. After Louisiana’s law went into effect, traffic on major platforms reportedly dropped between 80% and 95%. A sizable portion of this was undoubtedly children.

After passing, these bills have withstood court challenges by the adult industry. In Texas, a district court injunction was stayed by the 5th Circuit Court, and in Louisiana and Utah, lawsuits were dismissed in district court. And not only does the private cause of action enforcement mechanism buttress defensibility, but it also aligns with the natural rights of parents by putting them in the driver’s seat to protect their children.

Notably, in the majority of states where this was passed into law, major websites chose to leave them entirely in protest. If not being allowed to expose minors to their harmful and perverted content is disruptive to their business model, that business model needs to change.

ISSUES WITH AN ALTERNATIVE

Another bill has been introduced which has been framed as an alternative to our content-based bill. It is called the Children's Device Protection Act (S1253, formerly S1222), and a flaw with it is first apparent in the name itself. The bill mandates that certain devices activated in the state have pornography filters, but this only applies to smartphones and cellular-capable tablets. This method fails to address the numerous devices used to browse the internet from game systems and TVs to laptop computers.

The device-based filter requirement covers less, and yet it manages to be more cumbersome. Mandating under threat of civil and criminal liability that all tablets and smartphones activated in the state verify age during activation and account setup, enable filters for minor users, allow a password to be established for the filter, notify the user of the device when the filter blocks the device from accessing a website, and provide the user with a password the opportunity to deactivate and reactivate the filter is a large burden on manufacturers who are not the ones causing the actual problem. Not only are device-based filters (rather than app-based or website-based filters) necessarily very complex, but they are also a privacy concern; they would need to watch everything you are doing in order to screen it. Laws that require all adults with devices to verify their age, instead of only the adults who choose to view pornography, are also judicially problematic. The Supreme Court has made it clear that content-based restrictions can only hold up if they are the least restrictive possible, and this approach is not narrowly-tailored enough to be the least restrictive option. HB498 better preserves your liberty and will be more effective at protecting kids while putting the cost and responsibility where it belongs, on the content distributors and publishers.

HOPE

I have been greatly encouraged by the response I’ve heard from my colleagues regarding the Online Child Safety Act, and I’m optimistic that legislation will be passed this session which protects the most innocent and vulnerable in our society.

Please pray for me and my colleagues as we continue the fight to keep kids safe and protect the rights of families. I have faith that God will bless the work He has called me to do here in Boise.

In His Service,

Ben Toews

Idaho State Senator – District 4