Masks, juvy and AI pornography: New NC legislation and what it means for Duke’s home state

In May, a series of bills with the potential to alter the state’s legal and social landscape were under consideration by the North Carolina General Assembly.

The first two bills — H.B. 237 and H.B. 834, respectively — would impose rollbacks on mask-wearing and juvenile court placement and sparked controversy in the legislature over equity and legal concerns. The third bill, H.B. 591, promises to revolutionize artificial intelligence legislation in the state.

Separate versions of H.B. 237 were approved by the state House and Senate, and a conference committee has been appointed to work out the differences in language before sending the legislation back to both chambers for a final vote. H.B. 834 was passed by the House Wednesday in a 71 to 33 vote and now goes to Gov. Roy Cooper to be signed. H.B. 591 recently passed in the Senate with some changes, which are now under consideration in the House Rules Committee before final approval.

With these bills currently at the forefront of political discourse in North Carolina, two Duke professors and legal experts assessed the ramifications of the new policies for the University’s home state.

Public ban on masks

H.B. 237 would repeal an existing exemption that allows North Carolinians to wear masks in public for health reasons, which was implemented in May 2020 as a result of the COVID-19 pandemic.

First proposed May 7, the “Unmasking Mobs and Criminals” bill comes after an increase in demonstrations around the country relating to the Israel-Hamas war. N.C. Republicans have touted the policy as one that would make it easier to identify protesters who have used masks to cover their faces at recent demonstrations.

Effectively, the bill would ban North Carolinians from wearing masks in public, though the bill encourages police to use “good common sense” to not arrest those who may be using masks for health reasons.

The origins of anti-masking bills in North Carolina can be traced back to the 1950s when legislation was passed in an attempt to curb Ku Klux Klan membership in the state.

Pope McCorkle, professor of the practice in the Sanford School of Public Policy who previously worked as a lawyer and political consultant, described the bill as a “dog that won’t hunt.” He also expressed concerns over the implications of removing the exemption and deemed the bill an inevitable blow to Republican support.

“If [the health exemption] is not corrected … it could really hurt Republicans in the election because it just defies common sense,” McCorkle said. “[For] people with disabilities and immunocompromised people, North Carolina law is not going to say that you walk out to the doctor's office and you’re at risk of being arrested.”

Elana Fogel, assistant clinical professor of law and director of Duke’s Criminal Defense Clinic, echoed McCorkle’s concerns about the bill’s effect on immunocompromised people.

“You can't see if somebody's sick all the time, so it's hard to impossible to imagine — at least just by sight — if somebody has a legitimate reason to be wearing a mask,” she said.

Fogel further stated that criminalizing mask-wearing in public creates more reasons for police and civilian interactions.

She believes this bill further solidifies the association between policing and the “historical legacy of [masks and hoods] being associated with criminality, especially with youth of color.”

“… These [items] have to be considered in the context of movements for police reform and accountability and acknowledgment of histories of racial profiling in traffic stops or disparities in sort of police-civilian street encounters,” Fogel added.

Fogel also characterized the bill as a “sentencing enhancement,” explaining that charges for wearing a mask in public could be added to “underlying crimes” in order to increase the penalty.

McCorkle ultimately described H.B. 237 as “overreaching,” and Fogel deemed the dynamic the bill creates “worrying.”

Rollbacks on “Raise the Age”

H.B. 834 aims to automatically direct 16- and 17-year-olds to adult court for a greater range of felonies rather than giving district attorneys the option to direct some of these cases to juvenile courts. The bill would roll back the “Raise the Age” legislation passed in 2019, which kept 16- and 17-year-olds who committed nonviolent offenses in juvenile court.

Both Fogel and McCorkle emphasized the importance of “discretion” for certain criminal cases that can be directed to juvenile court, where teens may get better protection in detention. Such “discretion” entails district attorneys personally reviewing cases and ultimately deciding which court they will be prosecuted in, rather than all cases of a certain type being automatically directed to the same court.

McCorkle argued that although it may lead to different district attorney decisions and different prosecutions for similar cases based on location, such discretion is still important.

“You have district attorneys who probably know the system and know … ‘is this person really truly criminal or still juvenile’ — [they] could make some judgments,” he said. “… I personally would rather know that the district attorneys’ offices were way more involved in those decisions.”

Fogel believes that juvenile courts generally create better outcomes for those convicted than those tried and convicted in adult courts.

“I think that the stated aims of the systems are different,” she said. “It's not just the outcomes, but the goals and interventions and procedural protections for juveniles — young people in the juvenile system — are certainly more appropriately attuned to the unique needs of that population.”

As a lawyer who defended clients “days and weeks” after they turned 18, Fogel believes more convicts should be included in the conversation around juvenile detention.

McCorkle agreed that this bill is fundamentally complicated and attributed its creation to “ideological concerns” and “the public’s outrage about crime.”

‘Sexual extortion’ and AI pornography

H.B. 591 establishes “sexual extortion” as a new crime, which includes “intentionally threaten[ing] to disclose a private image, or to decline to delete, remove or retract a previously disclosed private image.” Private images are defined in the bill as those “depicting sexual activity or sexually explicit nudity.”

In addition to governing typical “sextortion” cases, the bill also criminalizes the creation of pornography using AI and its dissemination. If enacted, it would be the first N.C. bill to restrict certain uses of AI.

Fogel and McCorkle agreed that penalizing the nonconsensual creation and sharing of pornography was not controversial and that the bill further protects children from exploitation. 

“This bill does two things, one being sort of expanding the criminal reach of child pornography to also include AI-generated images that feature an actual child,” Fogel said. “… Then the second piece [is] the exploitation piece that seeks to penalize using something like that as leverage or to obtain something from a person or their family.”

Both professors agreed that the bill reflects changes in the legal landscape to adapt to emerging technologies like AI and address the harm that has been caused by them.

“The use of new technologies and the courts grappling with how to assess reliability and admissibility aren't totally new, but understanding AI and sort of working through the various ways it can be used — whether in law enforcement or in crime, in this example — are newer questions,” Fogel said.

Editor’s note: A previous version of the article stated that all three bills had been fully approved by the N.C. General Assembly and were sent to Cooper for a final approval. The Chronicle regrets the error.

Halle Vazquez | Staff Reporter

Halle Vazquez is a Trinity sophomore and an associate news editor for the news department.


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