Pornographic websites now have to verify the age of their users in several states, yet some advocates are claiming that the laws not only invade user privacy, but are also difficult — if not impossible — to enforce.
The pornography industry has argued in court that these laws would force pornographic websites to keep a database of sensitive information regarding their viewers. The industry also claims that the laws are easily evaded, meaning bad actors in the industry could operate black market sites that capitalize on exploitation and illegal content. The Free Speech Coalition, which is representing PornHub in a lawsuit in Texas, argued in a complaint that the law is “the least effective and yet also the most restrictive means of accomplishing Texas’ stated purpose of allegedly protecting minors.”
Likely fearing some sort of enforcement mechanism, PornHub did block users in certain states before the laws took effect, including Mississippi, Virginia and Utah. Users who try to visit PornHub’s website in these states are met with a message from a fully-clothed pornographic film star explaining why the site is no longer available.
“While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk,” the message reads. (RELATED: Federal Judge Sides With Pornhub, Says Age Restrictions And Warnings Violate First Amendment)
“In addition, mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply. As we’ve seen in other states, this just drives traffic to sites with far fewer safety measures in place. Very few sites are able to compare to the robust Trust and Safety measures we currently have in place. To protect children and user privacy, any legislation must be enforced against all platforms offering adult content.”
In recent months, Louisiana, Arkansas, Montana, Mississippi, Utah, Virginia and Texas have passed laws requiring that websites check a user’s age before allowing them to access pornographic material. PornHub has sued over the laws in several states, including Texas, Utah and Louisiana. A federal judge sided with PornHub in a September lawsuit in Texas, saying that age restrictions violated the First Amendment. Louisiana’s lawsuit is still ongoing, while the Utah lawsuit has since been dismissed.
“It would only have privacy risk if companies like PornHub don’t follow the law,” Republican Louisiana state Rep. Laurie Schlegel, who introduced a law in the state restricting access to pornographic websites, told the Daily Caller. “Because the law says you cannot retain any identifying information of an individual after access has been granted.”
It’s happening.
“Pornhub has pulled out of multiple states rather than comply with age-verification laws.”https://t.co/j6UAXtKfpr @politico
— Brad Wilcox (@BradWilcoxIFS) August 8, 2023
Schlegel says that in Louisiana a service called LA Wallet is used to create a digital ID. In regard to anti-porn laws, LA Wallet allows sites to check viewer’s ages without maintaining a database of their sensitive information. Sites that are age-restricted can request a quote that verifies a user’s status as over or under 18 without retaining that individual’s license.
“They never share their name,” Calvin Fabre, president of LA Wallet, told the Caller. “We don’t log that fact, we don’t even log who responded. And by law, we cannot track who was requesting the 18 or over challenge.”
U.S. District Court Judge Ted Stewart dismissed a lawsuit against the Utah law brought by the Free Speech Coalition in August because the law stipulates that any company found to have “knowingly retained identifying information of the individual after access has been granted to the individual shall be liable to the individual for damages resulting from retaining the identifying information.” Laws in Louisiana, Arkansas, Montana, and Mississippi have similar stipulations.
Shleigel told the Caller that while the laws have an undoubted effect on online porn consumption, some technologically savvy minors could still technically access the content. Schleilgel said that the enforcement of anti-porn laws would be similar to that of alcohol laws — while some still drink alcohol underage, the substance is significantly more difficult to obtain when age restrictions are in place.
“Of course, if there’s a will there’s a way. So somebody who’s determined to do it is going to do it. But just because there’s going to be some that do it doesn’t mean that we’re like, ‘Okay, well, let’s just throw out all of our alcohol laws. Hey, stop carding at the bars, just let whatever five-year-old come in,'” Schliegel said, adding that the law would “protect a majority of children.”
Mike Stabile, public affairs director for the Free Speech Coalition, told the Caller that the lack of adequate enforcement regarding these laws would direct users to dark web or international websites that do not comply with the law.
“So what happens is if you are an adult site and you block traffic, your traffic is gonna fall 95 percent because consumers don’t want to do this,” Stabile told the Caller. “And what happens is they go to sites that are not compliant, right? Where they go to free sites, or they’ll go to things like Twitter or Reddit, or they’ll go to some site that doesn’t do any sort of moderation at all and hosts illegal content or hosts child abuse content.”
“There’s a disincentive. There’s a disincentive for sites that want to comply. What it does is, instead of encouraging compliance, it creates a black market,” he added.
Terry Schilling, president of the conservative American Principles Project, told the Caller that the solution to the enforcement problem would be to create a private right of action where parents could sue companies if their children were able to access their content underage.
“This is a very dishonest industry now,” Schilling said. “So the real issue with leaving it all up to the state agencies is that it’s technically in their discretion.”
“The way to strengthen these laws is to not take away power from the agencies to enforce these laws, but to give additional power to parents to sue these companies, if and when they find porn from their production studios or websites on their children’s devices, or when they find that someone in their family has looked at this stuff.”