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Utah Weighs in Again

Utah has a new law that tries to keep indecent material off of Utah computers, one that Susan Crawford and CDT are quick to condemn on constitutional grounds. The bit about ISPs having to respect a “do not serve” list of indecent sites compiled by the Utah Attorney General is obviously problematic. As one of my students observed in class yesterday, what if the AG includes the Utah Democratic Party on the list?

But surely it isn’t irrelevant that service providers can comply with virtually all of their obligations by supplying customers with filtering software — so that blocking is both customer-initiated (customers have to request blocking) and customer-implemented? I’m as skeptical of filters as the next guy, but how much indecency is mandatory?

Still, the most provocative part of the law is Section 10, which appropriates $100,000 for the Utah Division of Consumer “for public service announcements advising consumers about the dangers of using the Internet,” “especially Internet pornography.” Surprisingly, perhaps, CDT endorses at least the principle of publicly-funded education about the Internet, though it would prefer that the campaign focus on “safe and appropriate use” of the Internet. I’m skeptical. I’m reminded both of the caution that the fight over copyright liability for service providers is going to turn into a fight about the failure-to-warn prong of products liability law, and Ed Felten’s recent corollary to Godwin’s Law: When the topic of a copyright policy discussion switches to pornography, each side suddenly adopts the other side’s arguments. A lot of people are rightly skeptical about the duty-to-warn argument in the copyright context. Why is porn different? Do we really want the government to tell us when the Internet is good for us, and when it’s not?