The battle brewing over Utah’s new law requiring visitors to sites like Pornhub to verify their age before watching adult content is set to spread across the US as other states pursue similar measures.
Pornhub began blocking Utah-based internet connections’ access to its content altogether when the law took effect May 3. The site redirects visitors to a video message of adult film actress Cherie DeVille explaining that the company disabled access over concerns that the law “is not the most effective solution for protecting our users and in fact will put children, and your privacy, at risk.”
The Free Speech Coalition, a group representing the adult entertainment industry, also sued to block the law’s enforcement that same day, making a similar argument about the trade-off regarding safety, privacy, and adults’ freedom to browse the web as they wish. The group has vowed to sue over age-verification measures set to take effect soon in other states, setting up the latest round in an increasingly contentious debate about how to regulate the way minors experience the internet.
“We want to ensure that the state legislatures are taking note of this lawsuit in Utah and recognize that we’re coming for them and for those statutes next,” said Jeff Sandman, a partner at Webb Daniel Friedlander LLP who is one of the lead attorneys representing the coalition.
Children’s safety advocates have championed policies that would force apps and websites to design their platforms with kids in mind. Tech groups have countered that parents are better suited than lawmakers to make decisions about their children’s online lives.
A growing number of Republican-led state legislatures across the US are opting to set age thresholds for certain digital platforms, including porn sites and social media apps. Utah and Arkansas in recent months enacted social media restrictions, the strictest so far in the nation. But these policies raise difficult questions for how exactly to confirm the age of an internet user, or even how to decide which parts of the web are inappropriate for minors.
“There’s not a lot of consensus on the best ways to do this,” said Bailey Sanchez, a policy counsel with the youth and education privacy team at the nonprofit Future of Privacy Forum. A few different age verification methods have emerged so far.
An earlier Louisiana law restricting underage access to adult content online allows for the submission of a state-issued digital identity card. The only information shared is age eligibility and where a person uses their digital ID isn’t recorded.
In Utah, meanwhile, the porn site xHamster is asking visitors to undergo age checks via the third-party company Yoti, which can use selfies to estimate how old a person is without retaining personal data.
State Sen. Todd Weiler (R), the primary sponsor of the age verification legislation, said he didn’t expect porn sites to be blocked in Utah when he introduced the bill.
“Instead, I expected the industry to make reasonable efforts to verify age. The law in Utah allows an adult website to take commercially reasonable steps to verify age. I’ve been told that other websites are complying with Utah’s law. If they can, Pornhub can as well,” Weiler said in a statement to Bloomberg Law.
Growing Verification Movement
Additional laws restricting minors’ access to adult content online are set to take effect in Arkansas and Mississippi in July. Virginia is close to passing its own version and at least seven other states are considering legislation with similar requirements.
Utah’s S.B. 287, which the legislature passed unanimously, covers platforms with more than a third of their published content appealing to the “prurient interest,” a phrase coined by the US Supreme Court. The law requires adult content providers to verify that the person viewing it is at least 18 years old using a digital ID, third-party verification vendor, or any other “commercially reasonable method.”
Opponents criticize the Utah law as overly vague, saying it makes compliance difficult. It lacks specifics about how to measure the proportion of inappropriate content on a site, such as by the amount of gigabytes or the number of uploaded videos, according to the lawsuit filed by the Free Speech Coalition. The industry group was joined by five other plaintiffs, including a former Goldman Sachs investment banking analyst turned gay erotica author.
Groups like the Information Technology and Innovation Foundation, which receives funding from companies such as
“Our opinion depends on how states expect online services to comply with these rules,” said Ashley Johnson, a senior policy analyst at the nonpartisan policy think tank.
The foundation didn’t take a stance on Louisiana’s online porn access law. But it came out against the Utah law because the state doesn’t have the necessary infrastructure to ensure age verification can be done in a way that doesn’t violate people’s privacy, Johnson said.
Utah is one of a handful of states across the US that offers a digital driver’s license that can be used at physical locations. But the state currently lacks the infrastructure needed for its digital IDs to be accepted online.
Utah’s Department of Public Safety, which manages the state’s mobile drivers license program, didn’t respond to requests for comment. According to the agency’s website, the digitized ID can be used at in-person locations like airports and liquor stores as of March 2023.
Children’s safety advocates point out the divide between in-person and digital age checks. US law has long restricted distribution of pornographic materials like magazines or films to minors, forcing vendors to ask for ID. Online, this same principle typically hasn’t applied, according to the National Center on Sexual Exploitation.
Other verification practices for age-restricted purchases have evolved for the digital age. To confirm that its consumers are 21 or older, e-cigarette maker Juul has used a combination of checking public records and comparing a photo of a person’s face to a photo of their ID card to verify identity.
“You can protect kids from gambling, alcohol, and smoking,” said Benjamin Bull, general counsel and executive vice president of National Center on Sexual Exploitation. “But it’s suddenly wrong to protect kids from pornography?”
Challenges of Implementation
Pornhub has no plans to bring back online viewing access in Utah anytime soon.
“Until there is a law which is both effective at protecting children’s safety and safeguarding user data privacy, we are unfortunately unable to offer our services in Utah,” said Solomon Friedman, a partner at the private-equity firm Ethical Capital Partners that owns Pornhub’s parent company MindGeek.
Friedman said MindGeek supports device-based solutions like
One fundamental problem with the state’s law, Friedman said, is the risk of associating personal information with adult users’ content viewing preferences—heightening the chance that their information could be exposed.
“We are of the view that we simply cannot expose users to that level of invasion of privacy,” he said.
The Utah law prohibits age-verification providers from keeping any identifying data about an individual after access to content has been granted. A private right of action included in the law would allow users to sue those that fail to comply. The law doesn’t specify potential damages, but large-scale consumer privacy suits have resulted in settlements totaling millions of dollars.
Even with such privacy requirements, there’s still a chance that personal data could be breached when transmitted for age verification, said Gregory Szewczyk, a partner practicing in privacy and data security at Ballard Spahr LLP.
Szewczyk added that blocking site access for internet addresses in Utah doesn’t equate to complying with the law. But businesses like Pornhub can avoid having to comply by choosing to remove their services from the state, he said.
Age verification is central to another recently enacted Utah law targeting social media companies. It aims to shield kids and teens from addictive features and harmful content by requiring parents’ permission for a user under 18 to open an account. That law leaves the method of age verification up to the agency responsible for enforcing the law—Utah’s Division of Consumer Protection—through rulemaking.
The social media law could eventually see legal challenges as well, considering it involves similar privacy and free speech issues, said Damon Wright, a technology partner at Gordon Rees Scully Mansukhani LLP.
“It’s not as salacious as porn,” Wright said. But in some ways, the law’s impacts on social media users’ free speech and their ability to communicate with others online may be even more significant, he said.
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