Seven states push to require ID for watching porn online

Opponents say laws preventing underage porn access are vague, pose privacy risks.

ARS TECHNICA

After decades of America fretting over minors potentially being overexposed to pornography online, several states are suddenly moving fast in 2023 to attempt to keep kids off porn sites by passing laws requiring age verification.

Last month, Louisiana became the first state to require an ID from residents to access pornography online. Since then, seven states have rushed to follow in Louisiana’s footsteps. According to a tracker from Free Speech CoalitionFloridaKansasSouth Dakota, and West Virginia introduced similar laws, and laws in ArkansasMississippi, and Virginia are seemingly closest to passing. If passed, some of these laws could be enforced promptly, while some bills in states like Florida and Mississippi specify that they wouldn’t take effect until July.

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But not every state agrees that rushing to require age verification is the best solution. Today, a South Dakota committee voted to defer voting on its age verification bill until the last day of the legislative session. The bill’s sponsor, Republican Jessica Castleberry, seemingly failed to persuade the committee of the urgency of passing the law, saying at the hearing that “this is not your daddy’s Playboy. Extreme, degrading, and violent pornography is only one click away from our children.” She told Ars that the bill was not passed because some state lawmakers were too “easily swayed by powerful lobbyists.”

“It’s a travesty that unfettered access to pornography by minors online will continue in South Dakota because of lobbyists protecting the interests of their clients, versus legislators who should be protecting our children,” Castleberry told Ars. “The time to pass this bill was in the mid-1990s.”

Lobbyists opposing the bill at the hearing represented telecommunications and newspaper associations. Although the South Dakota bill, like the Louisiana law, exempted news organizations, one lobbyist, Justin Smith, an attorney for the South Dakota Newspaper Association, argued that the law was too vague in how it defined harmful content and how it defined which commercial entities could be subjected to liabilities.Advertisement

“We just have to be careful before we put things like this into law with all of these open-ended questions that put our South Dakota businesses at risk,” Smith said at the hearing. “We would ask you to defeat the bill in its current form.”

These laws work by requiring age verification of all users, imposing damages on commercial entities found to be neglecting required age verification and distributing content to minors online that has been deemed to be inappropriate. The laws target online destinations where more than a third of the content is considered harmful to minors. Opponents in South Dakota anticipated that states that pass these laws, as Louisiana has, will struggle to “regulate the entire Internet.” In Arkansas, violating content includes “actual, simulated, or animated displays” of body parts like nipples or genitals, touching or fondling of such body parts, as well as sexual acts like “intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions,” or other sex acts deemed to have no “literary, artistic, political, or scientific value to minors.”

When Louisiana’s law took effect last month, Ars verified how major porn sites like Pornhub quickly complied. It seems likely that if new laws are passed in additional states, popular sites will be prepared to implement additional controls to block regional access to minors.

Ars could not immediately reach other lawmakers sponsoring age verification bills in these states for comment.

Is age verification the answer?

While Castleberry declared South Dakota’s bill dead, the proposed law in Arkansas has already passed the Senate and will be reviewed by the state’s House Rules committee tomorrow. That bill warns that exposing minors to pornography can negatively impact minors’ brain function and development, exacerbate their emotional or medical issues, trigger deviant sexual arousal, promote harmful sexual behaviors, and cause self-esteem issues or body image disorders in minors.

The Republican senator sponsoring the Arkansas law, Tyler Dees, told Vice that he introduced the bill after many constituents voiced concerns about “the growing problems related to pornography and the advancement of technology and devices around our children.”

It could be that Dees’ constituents were alarmed by the results of a recent survey on teens and pornography, which was published by Common Sense Media a week before Dees’ bill was introduced and was widely reported by media outlets like CNN and The New York Times. That survey found that 73 percent of teens reported that they consumed pornography, with more than half claiming they’d been exposed to porn accidentally and 15 percent of minors reporting they were first exposed to porn at age 10 or younger.

Age verification has become one answer to this so-called “public health crisis”—a label used by states like Arkansas and South Dakota to officially describe the negative outcomes of so much easily discoverable pornography online. Common Sense Media warned against states using that label, though, saying that “there has been little research on the effects of pornography on adolescents, and so we should remain alert to alarmist headlines about pornography being a public health crisis or destroying America’s youth.”

Arkansas’ bill proposes requiring porn sites to prevent underage access via any “commercially reasonable age verification method,” including collecting age data from a digitized identification card connected to a state-approved application. That method enables porn sites to access data listed on a state license or identification card. An associate director of digital strategy for the Electronic Frontier Foundation, Jason Kelley, has said that kind of sensitive data collection poses privacy risks to all users of porn sites. It’s especially concerning for those using smaller porn sites that may not be able to afford a comprehensive age verification solution to ensure that data is not improperly collected or sold. Even when laws specifically stipulate that websites cannot store or sell any data collected through age verification methods, users cannot be sure what will happen with their data, Kelley told Ars.

Smaller sites will have to decide how to approach age verification and may be unable to afford the most widely used services. “Do you create your own?” Kelley said. “Do you contract with a third party? Do you just not do it and hope for the best?”

However age verification works, Kelley said that this kind of data collection could increase risks of data breaches for age verification services and risks of blackmail for users. Bad actors may even set up porn sites specifically to profit off data or threaten to expose users.

Another problem with age verification laws is that they don’t cover all of the online options where users can find porn. Common Sense Media listed age verification among the possible solutions for lawmakers looking to restrict minors’ access to inappropriate materials. But while their survey indicated that 59 percent of teens report seeking out pornography on widely known porn sites, a third of teens said they are looking for it exclusively on social media. That means protecting minors relies not just on implementing age verification on porn sites but also on reducing adult content on social media.Advertisement

Other strategies that Common Sense Media recommended to address the problem include providing minors with more comprehensive sex education and encouraging parents to more openly discuss pornography with their kids. According to their survey, less than half of kids report talking with a trusted adult about pornography, and fewer than a third of minors “said there are currently content filters or parental controls in place at their home to try to prevent them from accessing pornography.”

States are showing, however, that age verification seems to be a preferred potential solution for some. Kelley told Ars that he thinks it’s unlikely that bills in all these states will pass, but Dees told Vice that he hopes that Arkansas passing an age verification law will prompt a similar federal law to be introduced.

The Free Speech Coalition tracker shows that Congress is considering creating an exception to Section 230 immunity that ordinarily protects websites from liabilities for third-party content. If Section 230 is amended, websites could be held liable for failing to implement a system to prevent minors from accessing indecent, obscene, or otherwise harmful content. That exception, which was referred to the House Committee on Energy and Commerce last month, would likely help address Common Sense Media’s concerns over minors seeking out or accidentally encountering adult content on social media. However, Kelley remains skeptical that these laws will be “as successful as people expect them to be in general at stopping people from seeing pornography.”

“If there’s anything that you learn as a person who spends time on the Internet, it’s that the Internet is for porn,” Kelley told Ars. “There are going to be places where if you want to find porn, you will be able to.”

This article originally appeared in ARS Technica

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