The rise and proliferation of age verification laws has changed the landscape for the online adult industry. A recent and compelling example is the state of Florida, where Attorney General James Uthmeier has filed multiple complaints against major platforms as well as affiliates accused of violating the state’s AV law.
The law, HB 3, took effect Jan. 1 and is similar to many other state AV laws. However, it does differ from other states’ AV laws in certain specific respects — and importantly, in how the state is pursuing alleged violators. As a result, adult companies operating in Florida should immediately familiarize themselves with the law, since failing to implement robust, legally compliant age verification in that state could result in severe financial and legal consequences.
Every business that profits from the distribution of adult content in Florida is now on the hook for compliance.
Below is a guide to what you can expect if your site has users in Florida, and how to protect your business.
Aggressive Enforcement, Broad Reach
Violations of Florida’s AV law carry civil penalties of up to $50,000 per violation, and the complaints filed by the AG’s office also seek to permanently block noncompliant sites from operating in the state.
Since the law took effect, Uthmeier has filed multiple, separate complaints against a growing list of companies, including some of the world’s most popular adult websites. However, the lawsuits name not just the website operators but also related corporate entities, payment processing services and what appear to be channel partners.
A key critical takeaway from these filings is the state’s broad interpretation of who is liable under the law. The pattern of the lawsuits suggests that Florida is seeking to hold content distributors and other third-party providers liable if they facilitate access to noncompliant sites and material.
This focus on dismantling the financial and distribution networks that support noncompliant sites is a highly effective, force-multiplying strategy. It sends a chilling warning throughout the entire adult content supply chain: Every business that profits from the distribution of adult content in Florida is now on the hook for compliance. Content creators, website owners and the third-party services that support them must therefore ensure that their compliance obligations are met, even if they are a step or two removed from the user interface.
US-Based Providers for ‘Anonymous’ AV
As noted, Florida’s age verification law has much in common with other states’ AV laws. For example, it includes the common “one third” rule, which requires 33.3% of a site’s contents to be “harmful to minors” in order for the AV mandate to apply. However, it also contains distinct provisions that set it apart from similar laws in many other U.S. states.
To address privacy concerns, many state AV laws prohibit AV providers from retaining users’ personal information or data beyond its immediate use for verification purposes. Unusually, Florida’s law differentiates between “standard” and “anonymous” age verification, defining “standard” AV as “any commercially reasonable method of age verification,” and “anonymous” AV as a “commercially reasonable method” that protects users’ personal identifying information, and does not retain it, share it or use it for any other purpose. It then requires covered sites to offer both options to users.
Further, the law prohibits foreign companies from conducting “anonymous” age verification for covered websites. The intent behind this last restriction is likely rooted in concerns over data security and foreign influence. By requiring a U.S.-based provider, the legislature presumably aims to ensure that the highly sensitive personal identifying information (PII) collected during the verification process — such as scanned government IDs or biometric data — remains subject to U.S. legal and privacy standards. However, the law does not apply this restriction to companies providing “standard” age verification, only to those providing “anonymous” AV.
All of this is confusing for a number of reasons:
- Why offer non-anonymous age verification at all? It is unlikely that many users will opt for the “standard” option when “anonymous” AV is available.
- The wording of the law suggests that “standard” AV providers are free to collect, retain, share and reuse users’ personal information. Was this really the legislators’ intent?
- Why require only “anonymous” AV providers to be U.S.-based and owned? Especially since most sites are likely to engage only one AV provider, rather than one provider for the “standard” option and another for the “anonymous” option, though the law technically permits engaging a different vendor for each option.
Considering that other states’ AV laws also include apparent errors and contradictions, it is likely that these issues may not reflect legislative intent, but rather poor drafting and/or limited understanding of how age verification works.
Regardless, the upshot of this provision for adult companies is that it narrows the field of potential third-party age verification vendors.
A Clear Trajectory
Will Florida continue along this path? All signs point to more of the same in the foreseeable future.
For instance, public statements from the Florida AG’s office have consistently conveyed a determined, zero-tolerance stance. For example, the AG has talked about targeting “online pornographers who are willfully preying on the innocence of children for their financial gain.”
There is also a financial incentive. The lawsuits explicitly contend that noncompliant websites are racking up “tens, if not hundreds, of thousands of violations” every day. Each access by a minor could be considered a separate infraction subject to the $50,000-per-violation penalty. The staggering potential for collecting fines provides another powerful reason for the state to pursue as many noncompliant entities as possible.
The lawsuits filed to date should therefore be seen as only the initial volley in a comprehensive, ongoing campaign to compel compliance with HB 3 across all facets of the adult industry operating in Florida.
What the Industry Must Do to Comply
All adult companies doing business in Florida should immediately review the following action checklist:
- Implement a robust, compliant age verification system. A simple “I am 18” button is explicitly noncompliant under Florida’s law. Engage a reputable third-party age verification provider that can offer age verification options that conform to the law’s requirements and specifications.
- Err on the side of caution. Although the law’s wording is confusing, seeming to technically exempt “standard” AV methods from privacy protections, adult sites and their AV providers should still make it a best practice always to follow the more rigorous privacy and data minimization principles listed for “anonymous” age verification. Likewise, although the law seems to exempt “standard” AV providers from the prohibition on foreign ownership, the safest bet is to make sure any AV provider you contract with is U.S.-based and owned.
- Assess partner liability. If you are a content creator, ensure that any platforms to which you upload are verifiably compliant. If you are a third-party service provider, advertiser or content delivery network, you must determine your exposure. As noted, Florida is aggressively tracing the money and distribution chain. You must require clients operating in Florida to demonstrate proof of compliance, and cease service to noncompliant clients.
- Prepare for legal action. Given the current enforcement climate in Florida, it would be wise to retain legal counsel to review compliance measures and prepare a defense strategy in case of a civil complaint or injunction.
Florida’s enforcement actions are unambiguous. They indicate that adult sites doing business in the state need to comply with all requirements of HB 3’s age verification mandate. That means that the steps detailed above are not merely helpful guidelines, but crucial safeguards required for protecting your business from potentially devastating legal and financial consequences.
This article does not constitute legal advice and is provided for information purposes only.
Corey D. Silverstein is the managing and founding member of Silverstein Legal, which represents all areas of the adult industry. His clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions. Contact him via MyAdultAttorney.com, corey@silversteinlegal.com or 248-290-0655.
