A new bill in Texas would require internet service providers inside the state to block sites that provide abortion information, as well making it illegal to host or even provide domain registration for sites that help people in Texas obtain or pay for abortions.
The bill, filed February 23rd by representative Steve Toth, attempts to crush access to services that ship the pregnancy-terminating drugs mifepristone and misoprostol, as well as aid funds that raise money to cover the cost of abortion-related expenses. Under the new bill’s rules, it would be unlawful to “create, edit, upload, publish, host, maintain, or register a domain name for an internet website, platform, or other interactive computer service that assists or facilitates a person’s effort in obtaining an abortion-inducing drug.”
Some other provisions — like rules against shipping mifepristone or misoprostol for the purpose of abortions — refer to transactions involving Texas residents, but that language isn’t directly present in the site ban, leaving its scope potentially ambiguous.
The bill covers efforts to ‘create, edit, upload, publish, host, maintain, or register a domain name for’ offending sites
Inside Texas, the bill would require internet service providers to “make every reasonable and technologically feasible effort” to block internet access to information “intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.” It specifically requires ISPs to block the websites of Aid Access, Hey Jane, Plan C, Choix, Just The Pill, and Carafem, all of which help direct visitors to places they can access abortion pills. But it also requires blocking any site or app “operated by or on behalf of an abortion provider or abortion fund,” a category that could include organizations like Planned Parenthood as well as numerous grassroots fundraising sites. And it provides legal immunity for “denial of service” to people who aid or abet abortion, apparently encouraging ISPs to kick users offline, too.
Like Texas’ notorious abortion ban, the bill leans on letting citizens bring civil lawsuits against services that violate the rules, a system that’s been described as a “bounty hunter” approach to law. Unlike the abortion ban, it’s not clear how much appetite there is to pass this — but it’s part of a slew of state laws that could spell trouble for the internet.
This isn’t the first bill to take legal aim at abortion access sites, but it may be the most detailed and restrictive attempt so far. Despite caveats insisting this won’t punish individual pregnant people (which are also present in Texas’ abortion ban), it’s designed to make accessing resources for ending a pregnancy as hard as possible. Texas prosecutors had already gone after aid funds that helped pay for out-of-state abortions, but the groups were granted an at least temporary reprieve last week when a judge blocked them from pursuing the cases.
Net neutrality rules should stop this — but the FCC can’t pass them
If it’s not obvious, the bill is a nightmare for both free expression generally — despite a clause claiming it doesn’t apply to First Amendment-protected speech — and web infrastructure providers specifically. Many sites, including The Verge, have written about how to obtain self-managed abortions and linked to sites like Plan C. This isn’t illegal (so far), even in places where abortion is banned. The bill should also run into federal law that protects free expression online: Section 230 also bars lawsuits or state criminal prosecutions against web platforms over most unlawful third-party content. And the ISP blocking provisions should fall afoul of net neutrality rules… but the Trump FCC rolled those back, and although President Biden called for them to be reinstated, his FCC is so far defined by his repeated failure to confirm a fifth commissioner who could break the current 2-2 partisan deadlock to pass them. Gigi Sohn, Biden’s proposed commissioner, just went up for confirmation a third time after being first nominated over 16 months ago.
More broadly, Republican and Democratic lawmakers alike have taken aim at Section 230, and Texas’ Fifth Circuit Court of Appeals is willing and eager to override federal law in favor of state-level speech rules. The Supreme Court, meanwhile, has proven hostile to abortion rights, and its stance on Section 230, despite some encouraging signs, remains unclear. And we’re still waiting for a Texas judge to decide whether the Comstock Act — a 150-year-old obscenity law — can be applied to ban sending mifepristone by mail.
The bill is also emblematic of the new push to enact government internet censorship while claiming that social media platforms pose an unprecedented threat to speech. Texas previously banned large internet platforms — potentially including Wikipedia — from suspending users based on their “viewpoint,” effectively making much internet moderation impossible. Against this backdrop, the new Texas bill isn’t necessarily hypocritical. It just illustrates the kind of internet that some (mainly Republican) lawmakers seem to want: one where individual businesses can’t set rules for their own platforms, but states can build a small-scale Great Firewall around their borders and open the door to punishing web services nationwide.
Many extreme state laws don’t pass, and it’s more likely than not that this is one of them — but against the current legal backdrop, the risks of ignoring them are a lot higher than usual, too.
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