After years of trying, states are finally passing laws that disrupt the business model of porn behemoths such as PornHub, which is sending shock waves through the adult industry. PornHub is one of the biggest providers of online pornography in the world. In 2019 (the last year for which there is data) the site was visited 42 billion times, or 115 million times each day. Like it or not, porn is a part of the lives of large numbers of people and PornHub is a market leader.
In January 2024, however, PornHub started blocking access to its website in North Carolina and Montana following the introduction of new laws in both states. The laws require websites that include explicit material to lock it away behind some sort of age verification system. And these two states aren't the first to introduce such laws. And who can take credit? You might be surprised to learn that Billie Eilish, Howard Stern and a British feminist all play a part in the tale.
Given the increasing concern about the effect that pornography can have on children and a growing clash with porn providers let's take a look at the legislation that has been introduced and look ahead to what might be to come.
Is Porn a Bad Thing?
Back in the day, sexually explicit material was safely kept out of the reach of minors. Either physically, by putting it on the top shelf in shops or by the application of film and TV censorship and age classification. But with the advent of the Internet, such content was only a click away. Pornography on the Internet is big business. The adult online content market in the United States surpassed a value of one billion dollars in 2023 and is growing at a rate of twelve and a half percent a year. While most viewing is by adults, there is good evidence that younger teenagers are also accessing explicit material. A 2022 study found that 63% to 68% of teens have watched porn in their lifetime, while 23% to 42% watched in the last year. There is no conclusive evidence of the effects of pornography on teenagers, but there are some studies that suggest watching porn can affect aggression levels, anxiety, and depression. A 2018 study showed that pornography exposure lead to decreased self-esteem and negatively impacted symptoms of anxiety and depression in teenage girls specifically. A 2021 study found an association between pornography exposure in teen males and aggressive and rule-breaking behavior. There are also concerns about the normalisation of sexual violence in online pornography, and the role that this plays in shaping children’s understanding of sex and relationships.
Porn in the UK
Accepting that this material is unsuitable for younger people, the question then becomes how do you stop them watching it? Across the world countries have been grappling with the problem and struggling to come up with clear solutions. In the UK, the media regulator Ofcom published draft guidance in December 2023 on how online pornography services can provide 'highly effective' age checks to stop children accessing their services, to comply with rules in the new Online Safety Act.
The list of measures for proving someone is over 18 include: uploading a photo-ID document; facial age estimation technology; contacting your mobile network provider to allow your phone to access adult content; checking age via credit card details; and using “digital identity wallets” that store evidence of a person’s age. The guidance also stipulates that services must take care to safeguard users’ privacy and adults' rights to access legal pornography, which is of course where it all gets tricky. If adults are required to provide proof of age, how can you eliminate the possibility of data leaks which will identify users and their porn preferences?
The US Approach
In the US, a number of states have tried to introduce legislation to require verification of a user's age. This stakeholder page lists 50 bills introduced across the US between 2020 and 2023 related to some kind of age verification system for porn. For years none were successful, but that all changed in 2022.
The Billie Eilish Effect
The story actually begins back in 2021, with newly minted Louisiana Republican Representative Laurie Schlegel. The Representative, a professional sex addiction therapist, saw an article about popstar Billie Eilish's appearance on The Howard Stern show where she discussed her porn addiction. “I used to watch a lot of porn, to be honest. I started watching porn when I was like 11. ... I think it really destroyed my brain and I feel incredibly devastated that I was exposed to so much porn.”, she told Stern. The interview prompted Schlegel to act. This is where the story takes an even odder turn, as Schlegel teamed up with Gail Dines, self-described radical feminist, sociologist and anti-porn crusader from Manchester, England. Even though they come from different ends of the political spectrum, they bonded over their opposition to pornography and agreed on the harm it causes. Working together, they convinced Louisiana legislators to sponsor and then pass HB142 in 2022 near unanimously - the single dissenter was Democratic Rep Mandie Landry. “It just lends itself to absurd implications,” Landry said later. “The question is what is pornography or obscenity, who gets to decide, and how is that enforced? So much of that is in the eye of the beholder.”
The law requires age verification for any website that contains 33.3 percent or more pornographic material. Websites must verify a visitor's age using an app called LA Wallet, or a few other methods, which requires a Louisiana state ID or driver's license. PornHub implemented the system, and even though it was clear that it would not retain any data that could identify users, it saw traffic from Louisiana drop by 80%.
Following that experience, Aylo, PornHub's parent company took the decision to instead block the state in protest at the way the system was implemented. It cites privacy and data security concerns, but also the lack of effective regulation which means only a minority of companies implemented the change in Louisiana and users therefore just switched to other pirate, illegal, or other non-compliant sites that don’t ask visitors to verify their age. Risk is therefore increased, not decreased as user may end up on these smaller sites which could contain even more disturbing material or malware.
The Electronic Frontier Foundation has pushed back against age verification mandates, criticizing the laws as “surveillance systems” that pose privacy issues to anyone who uses them. “Once information is shared to verify age, there’s no way for a website visitor to be certain that the data they’re handing over is not going to be retained and used by the website, or further shared or even sold,” the group wrote in March 2023.
These issues did not stop other states from following Louisiana's lead. The Louisiana bill was picked up as a 'model bill' and in 2023 Utah implemented SB 287, Virginia enacted SB 1515, North Carolina included the measures in H8, Montana created SB 544 and Mississippi enacted SB 2346. Pornhub has since blocked all these states. Site visitors are greeted by a video featuring Cherie Deville who explains why PornHub decided to block them from accessing its content. She also explains PornHub's solution - a device-based verification system which only requires the device to be verified once rather than each time the user visits a site.
All the laws are very similar, including slight variations of this text:
(1) Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.
(2) Any commercial entity or third party that performs the required age verification shall not retain any identifying information of the individual after access has been granted to the material.
(3) (a) Any commercial entity that is found to have violated this section shall be liable to an individual for damages resulting from a minor's accessing the material, including court costs and reasonable attorney fees as ordered by the court.
(b) A commercial entity that is 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, including court costs and reasonable attorney fees as ordered by the court.
A key element of the bill comes at the beginning: "The provisions of this Section are intended to provide a civil remedy for damages against commercial entities who distribute material harmful to minors.". Whereas in the UK the Online Safety Act basically gives the regulator more powers to prosecute and fine online content providers, the Louisiana bill provides for civil suits brought by parents or others against the providers, in a measure reminiscent of Texas's SB8 which allows citizens to sue abortion providers.
Other states that enacted effectively the same law in 2023 are Arkansas and Texas bringing the total to eight. In Texas, however, the new law was struck down by a federal judge in September last year who ruled it violated free speech rights and was overbroad and vague. He also claimed the law raises privacy concerns over the retention of ID details and unconstitutionally compels speech by requiring adult sites to post health warnings they dispute — that pornography is addictive, impairs mental development and increases the demand for prostitution, child exploitation and child sexual abuse images. The state attorney general’s office immediately filed a notion of appeal.
Legislation in 2024
But what about going forward? There are 49 bills currently in progress in 2024 related to porn age verification, across 20 states. Here is the distribution across the US:
Two of the bills are in Congress: the Children and Teens’ Online Privacy Protection Act which seeks to strengthen protections relating to the online collection, use, and disclosure of personal information of children and teens but nonetheless includes age verification and the SCREEN Act Shielding Children's Retinas from Egregious Exposure on the Net Act which wins the prize for most tortured bill title and is in effect a national version of the Louisiana bill. Their chances of success are slight because, you know, Congress.
Thirteen of the others are also variations of the Louisiana bill, across another nine states. This map widget shows which states:
If all of these were to be enacted (which they won't be) then the parts of the US which would be PornHub-less in a few years would be:
Age verification laws will only spread, and the implementation in the current eight states will serve as testbeds for how the laws can safely and proportionately be rolled out across in more states as legislation passes. Technological solutions which are robust but also protect users' privacy and data will have to be found, and we can expect them to be tested in the courts to see if they fall foul of constitutional rights to free speech.
The Free Speech Coalition, the trade group for the adult industry, has already sued Louisiana and Utah, and the rest of the states might be next. “I can’t stress enough that this is First Amendment protected speech,” warned Mike Stabile, director of public affairs for the Free Speech Coalition.
Of one thing we can be sure, pornography isn't going away anytime soon and neither is the controversy surrounding access to it.
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