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Obscene online material would be blocked under North Dakota legislation

BISMARCK — A bill introduced this week in the North Dakota Legislature that would require companies to block obscene material found online raised constitutional questions Tuesday, Jan. 10.

House Bill 1185 is aimed at protecting children from pornography and from being lured into human trafficking, said its primary sponsor, Rep. Lawrence Klemin, R-Bismarck. It's part of a national effort to pass similar legislation in other states.

The bill would require manufacturers, distributors and sellers of products that make "any content on the Internet accessible" to include a "digital blocking capability that renders obscene material or obscene performances ... inaccessible." It also directs those manufacturers, distributors and sellers to ensure sexual content involving minors is inaccessible.

Providing a device without a content blocker would be a Class A misdemeanor under the bill.

A manufacturer or wholesaler could deactivate the content blocker if a consumer makes a request in writing and verifies they are at least 18 years old. They would also have to pay a $20 fee "to help offset the secondary harmful and social effects of products that distribute the Internet and make Internet content available."

Klemin said the fee revenues would go to organizations that work with human trafficking victims.

The bill also requires that "any hub promoting or facilitating prostitution" be made inaccessible, as well as websites known to be facilitating human trafficking.

But a leader of an anti-sex trafficking coalition in North Dakota questioned how effective the legislation would be.

"I'm all for creative efforts of looking at how we can battle this, but I think it demands some more precision than what I've seen in that bill so far," said Christina Sambor, coordinator for the FUSE coalition.

Jennifer Cook, policy director at the American Civil Liberties Union of North Dakota, had First Amendment concerns over the bill and doubted it would stand up to constitutional scrutiny in court. She said defining "obscene" is a complex task.

Klemin said his bill isn't about censorship, but rather to protect children.

"A 12-year-old or 13-year-old kid can't go to a R-rated or X-rated movie, but yet they can carry a ... pornography site around on their smartphone and access all of that stuff anytime," he said.

That argument was echoed by Chris Severe, a former prosecutor involved in the national effort on the so-called "Human Trafficking Prevention Act." He pointed out pornographic magazines on display at convenience stores are censored.

"We're not really reinventing the wheel with this bill," Severe said.

But Dan Nelson, director of governmental relations for Midco, questioned the practicality of implementing the blocking technology on the scale the bill requires. He also raised questions about how the legislation would affect interstate commerce.

"The structural problems, the conceptual problems and just the practical problems of this legislation are pretty evident without too much study and research," Nelson said.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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