A proposed state law in Texas would force Internet service providers to block websites containing information on how to obtain an abortion or abortion pill. Republican lawmaker Steve Toth, a member of the state House of Representatives, introduced the bill last week.
Texas already has several laws that heavily restrict access to abortion, but the new proposal is notable for its attempt to control how ISPs provide access to the Web. “Each Internet service provider that provides Internet services in this state shall make every reasonable and technologically feasible effort to block Internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug,” the bill says.
The bill lists six websites that would have to be blocked: aidaccess.org, heyjane.co, plancpills.org, mychoix.co, justthepill.com, and carafem.org. ISPs would also have to block any website or online platform “operated by or on behalf of an abortion provider or abortion fund” and any website or platform used to download software “that is designed to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.”
Finally, the bill would force ISPs to block any website or platform “that allows or enables those who provide or aid or abet elective abortions, or those who manufacture, mail, distribute, transport, or provide abortion-inducing drugs, to collect money, digital currency, resources, or any other thing of value.”
People who become aware of websites containing prohibited abortion information may notify an ISP “and request that the provider block access to the information or material in accordance with that section,” the bill says.
Bill encourages civil lawsuits
Toth’s proposal isn’t just aimed at ISPs. Individuals in Texas would be prohibited from making or hosting a website or platform “that assists or facilitates a person’s effort in obtaining an abortion-inducing drug,” for example.
More broadly, the bill would establish “civil liability for distribution of abortion-inducing drugs.” It attempts to extend the law’s reach outside the Texas borders, saying “the law of this state applies to the use of an abortion-inducing drug by a resident of this state, regardless of where the use of the drug occurs.” Women who get abortions would not be held liable, as the bill targets distribution instead.
The bill would create a private civil right of action that would let individuals sue people or organizations that violate the proposed law. The private right of action would include letting Texans sue any interactive computer service that provides “information or material that assists or facilitates efforts to obtain elective abortions or abortion-inducing drugs.”
While the bill would make it a criminal offense to pay for the costs of an elective abortion or to destroy evidence of an elective abortion, it mostly limits enforcement to civil lawsuits in other circumstances. It specifies that no state or municipal official can take action against ISPs, interactive computer services, or others who violate specific sections of the law.
ISP liability shield could spur more blocking
Despite the focus on civil lawsuits, the bill says government officials “may request or encourage an Internet service provider to comply with the requirements of this subchapter.” It would also give ISPs a liability shield that could act as an incentive to err on the side of blocking more websites.
ISPs would have “absolute and nonwaivable immunity from liability or suit” for any “action taken to comply with the requirements of this subchapter, or to restrict access to or availability of the information or material described,” the bill says. ISPs that qualify for this immunity would even be able to recover financial damages from people who sue them.
The bill also seems to encourage ISPs to cut off broadband service from people who aim to spread information about abortion. ISPs would have the same “absolute and nonwaivable immunity from liability or suit” for “denial of service to persons who use or seek to use the Internet to make available information or material” described in the bill.
Interactive computer service users and providers would also have immunity from lawsuits for actions taken to restrict access to abortion information or to deny service to people “who provide or aid or abet elective abortions or who manufacture, mail, distribute, transport, or provide abortion-inducing drugs.”
The abortion bill would raise concerns about the government deciding which websites people may visit, particularly as federal net neutrality rules were eliminated by the Trump-era Federal Communications Commission. But it could still be challenged in court if it became law. As Free Press General Counsel Matt Wood told Light Reading, “this bill that would see a state government making those choices for the carriers and their customers alike is absolutely terrifying and constitutionally suspect too.”
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