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Challenge likely if Huntsman signs
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah lawmakers, intent on protecting children from Internet porn, adopted legislation that probably will end up in court if Gov. Jon Huntsman Jr. signs it.

First Amendment advocates say House Bill 260, which would require the Attorney General's Office to compile a list of "harmful" Web sites and force Internet service providers to block access to such sites at a customer's request, violates the U.S. Constitution. The American Civil Liberties Union of Utah and the Center for Democracy & Technology in Washington, D.C., both have asked Huntsman not to sign the legislation.

Friday, Huntsman spokeswoman Tammy Kikuchi said the bill has not yet arrived on the governor's desk. But House Bill 260 is not on the short list of bills Huntsman and his staff have highlighted for concern.

Highland Republican Rep. John Dougall proposed the legislation last month as a way to help parents overwhelmed by advancing technology.

"There is a technology gap between parents and kids. Kids are much more savvy about what's going on than their parents," Dougall said during debate on the House floor. "We're expecting [Internet] service providers to provide some option for protections. Government plays a critical role in that."

Utah's draft law is tied to state code establishing a standard for material that is "harmful to minors." Under this year's legislation, state attorneys would mine the Web for legal adult sites that appeal to the "prurient interests in sex" of children - porn or otherwise. Internet service providers would have the choice of providing filtering software to users or blocking a site themselves. Utah-based companies that build and maintain those sites would be required to label the content "harmful to minors." And those who don't comply could be charged with a Class A misdemeanor, punishable by 1 year in prison and/or a $2,500 fine.

Finally, the legislation calls for a consumer education program to inform parents of the "dangers" of the Internet. Lawmakers set aside $250,000 to cover the costs of the bill.

ACLU of Utah Director Dani Eyer said legislators are forcing government watchdogs to step in as "superparents" and censor Utah children's access to the Internet.

"It's an inappropriate role for the government," said Eyer.

Utah Attorney General Mark Shurtleff's office, which would be charged with enforcing the law, did not respond Friday to phone calls seeking comment.

Center for Democracy & Technology legal counsel John Morris compares it to a similar Pennsylvania law meant to block child porn that was overturned in 2004. The state ended up paying about $1 million in combined attorney fees.

In a legal analysis of the bill Morris sent to Utah's governor a week ago, he warns the legislation sets up "government-imposed censorship" of legal adult content that inevitably will be challenged.

The practical limitations on Internet service providers who would try to comply with Utah's law also pose constitutional questions, Morris said. Because Web sites are bunched on servers, Internet service providers would have to block all the Web sites on an individual server in order to obstruct one porn site - potentially eliminating access to thousands of innocent Web sites. The same principle likely would apply to Internet users, he said. Rather than go through the expense of reconfiguring their software, Internet service providers would block access to Web sites for all users worldwide rather than run afoul of Utah's law, a potential violation of the U.S. Constitution's First Amendment and the Commerce Clause.

Morris said he warned Dougall, House Speaker Greg Curtis, Senate President John Valentine and Huntsman before the bill passed March 2.

"I have no doubt this law will get challenged in court. And there is zero doubt in my mind this law will be overturned," he said. "Utah citizens will be responsible for a very large attorneys fee bill."

Curtis, however, said he believes legislative attorneys have carefully written the legislation to avoid the legal pitfalls of Pennsylvania's law. Shurtleff also reviewed the legislation before lawmakers voted. "I don't see the concerns," Curtis said.

If Huntsman signs the bill, the law will take effect immediately.

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