During the past year, website operators have faced a slew of new state age verification laws entailing a variety of inconsistent compliance obligations.
These laws are likely unconstitutional, based on existing legal precedent from the U.S. Supreme Court and numerous federal court decisions over the last 20 years. However, the Fifth Circuit ruled in March, in the case Free Speech Coalition, et al. v. Paxton, that Texas’ age verification law is likely constitutional. Although that opinion relied upon questionable legal reasoning, the decision has created major uncertainty in the adult industry. The Supreme Court has been asked to review that decision, but a final ruling will take some time.
Some operators have chosen to block residents of certain states where these laws have gone into effect. As more states pass AV laws, however, geo-blocking becomes less practical.
In the meantime, website operators seeking to navigate these laws may find the process of understanding and/or complying with them daunting. This article will review the various triggers and compliance methods in an attempt to provide some clarity.
Coverage: Does This Apply to My Site?
The first issue to address is whether your website is covered by each law, and therefore required to implement age verification and/or data deletion procedures. The vast majority of the recent spate of state AV laws impose obligations on sites containing a minimum of 33.3% materials designated as “harmful to minors.” Kansas is the exception, with its percentage set at 25%.
Typically, pornography falls within the definition of “harmful to minors” — but there are gray areas. What about erotic story sites containing only text? Most of the age verification statutes consider material harmful if it depicts or even describes sexual conduct. However, North Carolina’s statute excludes material consisting entirely of written words.
In addition, some definitions of “sexual conduct” are very specific while others are more general. For example, Louisiana, Kentucky, Montana, Texas, Utah and Mississippi include under their definition actual, simulated or animated display or depiction, in a patently offensive manner, of “pubic hair, anus, vulva, genitals, or nipple of the female breast” in addition to typical sex acts like intercourse, masturbation, copulation, etc.
Indiana’s law describes harmful material as including any form of “nudity, sexual conduct, sexual excitement or sado-masochistic abuse.” Florida, on the other hand, includes terms not found in other statutes, like “deviate sexual intercourse,” “sexual bestiality” or touching of certain body parts “with the intent to arouse or gratify the sexual desire of either party,” while exempting breastfeeding by a mother. North Carolina oddly includes “physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in revealing or bizarre costume,” along with “less than opaquely covered human genitals, pubic area, or buttocks … or nipple.”
Due to these inconsistent descriptions of what constitutes “harmful” materials, some of these laws may apply to certain adult-oriented sites while others may not. The broad definitions that include insufficiently covered buttocks, pubic areas or nipples could even trigger compliance obligations for large social media platforms, depending on the percentage of site content meeting the definitions.
No guidance is provided regarding how to calculate the percentage of content — whether by pixel, by megabyte, by webpage or some other method. However, most adult pay sites would likely meet the triggering thresholds in the state laws passed thus far.
Exemptions: What Sites and Services Are Not Required to Comply?
Some online services are exempt from compliance in certain states, even if a website or service contains the triggering amount of “harmful” content. Most states exempt news organizations, internet service providers, search engines and cloud service providers. However, given the lack of definitions of these terms in many laws, it is not settled whether an adult user-generated content platform constitutes a “cloud service provider” or whether an adult aggregator site is a “search engine.”
Interestingly, Kentucky’s AV law only exempts “general purpose” search engines, suggesting that search engines targeting adult content may fall within its age verification requirements. Notably, Kansas’ law applies not only to the site on which the content appears, but also to sites that “knowingly host” such content — while exempting internet service providers and interactive computer services. Non-adult online platforms and third-party hosts could therefore be covered by the definition in Kansas, depending on how the statute is interpreted by the courts. The exemptions in Idaho’s law include web browser providers, smart device manufacturers and computer manufacturers.
These exemptions illustrate that the role a website or service plays in making adult content available significantly impacts whether it must comply with the AV laws in various states.
Compliance: Acceptable Types of Age Verification
Assuming that your website or online service is not exempt, and that you are required to institute age verification, the next question is: What types of age verification activity are permitted?
This is where the laws tend to diverge. Website and online service operators should therefore review each applicable state law to determine what specific verification options are compliant.
Importantly, physical review of IDs by the operator will not suffice in some states. To comply with almost all states’ requirements, operators should utilize a commercially reasonable third-party service that either collects government-issued IDs or compares, at least, a user’s name and birthdate to a database regularly used by businesses and governments for this purpose and which contains transactional data. The exception is Florida, where the user must be offered two choices: a U.S.-based verification service and some other commercially reasonable method.
Deletion of User Data
The final issue to consider is whether any user data provided for verification must then be promptly deleted by the operator or service provider. Data deletion is required in all states other than North Carolina and Virginia. Therefore, operators seeking to comply with states’ requirements should ensure that data is deleted. Thus far, none of the state laws require retention of verification data.
Some operators have chosen to block residents of certain states where these laws have gone into effect. As more states pass AV laws, however, geo-blocking becomes less practical. Other operators have taken a “wait and see” approach, given pending litigation such as the requested Supreme Court review noted earlier.
For those attempting to comply with the laws, the above information supplies an overview of relevant definitions, exemptions, compliance options and data deletion obligations. Ultimately, however, decisions on whether and how to comply with any or all age verification laws should be made in close consultation with legal counsel — especially since new laws are pending in various states and could be adopted at any time.
Lawrence Walters heads up Walters Law Group and has represented adult content creators, producers and publishers for over 30 years. He can be reached through the firm’s website, firstamendment.com, or on social media @walterslawgroup.
