Industry stakeholders and free speech advocates have anxiously been awaiting the Supreme Court’s decision in Free Speech Coalition v. Paxton, which could significantly impact state age verification laws around the country. In the meantime, state legislatures continue to weigh and pass AV bills, AV tech providers continue to tout their services, and legal challenges continue to play out in the courts — with some cases on hold pending the SCOTUS ruling in Paxton.
This roundup provides an update on the latest news and developments on the age verification front as it impacts the adult industry.
As age verification laws have spread across numerous states, the debate over AV — once limited to trade and tech outlets — has begun to make its way into mainstream media and discourse. This trend appears to be driven in part by vocal anti-porn campaigners pushing these laws, in part by the inevitable “racy” thrill element often exploited in mainstream coverage of the industry, and in part by the promotional efforts of AV tech providers.
While state and local coverage often leans toward echoing legislators’ talking points, some national outlets have delved deeper into the topic. Most recently, The Atlantic devoted an episode of its podcast to the question, “Would You Give Pornhub Your ID?” The installment features the authors of an academic study on which XBIZ reported last month, which examines search behaviors and concludes that AV laws are ineffective at achieving their stated goal of preventing minors from accessing adult material online.
ABC News similarly asked, “Will you need an ID for porn?” in promoting a segment that juxtaposes the views of a spokesperson for the anti-porn lobby group NCOSE and performer and industry advocate Cherie DeVille — who has become the face of Pornhub’s explanatory videos for residents of states where the site has pulled up stakes. Unsurprisingly, the report also uses the issue as an excuse to flash salacious glimpses of adult performers.
‘Segregate-and-Suppress Laws’
In addition to the study noted above, the mainstreaming of the issue has spilled over into other corners of academia. A new paper by law professor Eric Goldman, who serves as associate dean for research and co-director of the High Tech Law Institute at Santa Clara University School of Law, argues against the current spate of AV laws.
In the paper, titled “The ‘Segregate-and-Suppress’ Approach to Regulating Child Safety Online,” Goldman writes, “Legally mandating differential treatment between minors and adults superficially sounds like common sense, but implementing this principle online leads to surprising and counterproductive outcomes. Requiring readers to authenticate their age exposes minors (and adults) to significant privacy and security risks; and it dramatically reshapes the Internet’s functioning to the detriment of almost everyone. Further, due to the inherent tradeoffs caused by segregate-and-suppress laws, the laws inevitably harm some minors.”
The paper is set to appear in a forthcoming issue of the Stanford Technology Law Review.
North Dakota Doubles Down, Texas Seems Confused
Even though North Dakota’s governor signed an age verification bill into law earlier this month, the state legislature seems to be taking a “belt and suspenders” approach, having sent a second, identical bill to his desk on Wednesday. While SB 2380 originated as a device-based AV bill, its sponsors backed down from that approach, and it was amended to make it yet another copycat version of the age verification bills being promoted around the country by religious conservative activists — exactly like HB 1561, enacted on April 11. It is unclear why two identical laws are necessary.
Meanwhile, in Texas, the state house passed HB 581, a bill amending the same Texas AV law currently awaiting review by the Supreme Court in Free Speech Coalition v. Paxton. The amendments in the measure include a provision requiring that sites which offer AI tools for users to create porn must implement age verification under the same standards as sites that publish preexisting adult content.
Confusion arises, however, from the definition of “artificial sexual material harmful to minors” not merely as AI-generated porn, but specifically as AI-generated porn “in which a person is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature.”
While this would seem to be an attempt to address concerns about deepfake porn and unauthorized use of a person’s likeness — issues currently being legislated in many states and at the federal level — the wording of the definition muddies the age verification provision by seemingly not requiring AV implementation if users create porn that does not feature recognizable real people.
Such confusion is not uncommon in AV legislation. For more examples, see the March 20 “Some Laws Just Make No Sense” edition of Age Verification Watch.
Ofcom Announces Final Compliance Deadline
U.K. media regulator Ofcom has set a deadline for user-to-user services such as tube, cam and fan sites to implement its requisite “highly effective age assurance” measures. The agency previously revealed that the deadline would be in July, but on Thursday announced the specific date of July 25.
Other types of adult sites, such as studios and paysites, have already fallen under the rules of the Online Safety Act, which Ofcom is charged with enforcing, and the agency recently stated that age assurance measures have gone live or are in progress across “thousands of sites” accessible in the U.K.
Other Updates
In Alabama, two bills on which XBIZ has been reporting continue to make their way through the legislative process. SB 186, which mandates device-based filtering, has passed the state Senate and appears headed for a vote in the House. SB 187 would require app store providers to verify the ages of users and link minors’ accounts with parental accounts for approval of app downloads and in-app purchases. That bill is awaiting further committee hearings.
Numerous other bills, introduced earlier in the legislative session, are sitting on committee agendas awaiting action. Free Speech Coalition maintains and updates a list of pending AV legislation here.
XBIZ also reported earlier this week on recent AV enforcement actions by French media regulator Arcom. Find the full story here.
