Since the Supreme Court’s decision in Free Speech Coalition v. Paxton, more state age verification laws have been enacted around the United States, as well as proposed at the federal level and in other countries. This roundup provides an update on the latest news and developments on the age verification front as it impacts the adult industry.
Going Nationwide: The SCREEN Act
As XBIZ reported last month, the SCREEN Act would make site-based age verification of users seeking to access adult content federal law. It is now part of a suite of online safety bills that legislators are trying to fast-track. As a federal law, it would generally preempt state AV laws, and the amended version of the SCREEN Act even includes a section specifically affirming the proposed federal rule’s primacy. About half of all U.S. states currently have AV laws on the books. If the SCREEN Act becomes law, its provisions will supersede those state laws. The bill is awaiting consideration by the Committee on Energy and Commerce.
The Return of ‘Health Warnings’
As XBIZ reported last year, AV regulations were unilaterally imposed in Missouri by that state’s attorney general, who bypassed the legislative process in a controversial move that may yet be subject to legal challenges. Perhaps in anticipation of such challenges, state legislators have since introduced several bills that would put a legislative stamp of approval on those AV regulations, so that the law would remain in effect even if the AG's move is overruled.
Some of those bills would require adult sites to post notices warning users of alleged physical, mental and social harms associated with pornography, despite a previous federal court ruling against such requirements. HB 1839, SB 901, SB 1346 and SB 1412 all contain the same provision and are currently awaiting consideration in various committees. Two other bills in Missouri would also codify AV rules similar to those imposed by the attorney general, but without any such requirement.
A pending bill in the state of Washington would similarly require sites subject to its AV rules to display “information pertaining to the youth health risks associated with adult content” on their landing pages and in advertisements for the site, as well as contact information for the Substance Abuse and Mental Health Services Administration helpline. No mention was made of the requirement during a Jan. 16 committee hearing on the bill.
Exceptions to the Rule
Ohio Attorney General Dave Yost’s push to enforce that state’s age verification law hit a snag when Pornhub asserted that the law does not apply to it because Pornhub qualifies as an “interactive computer service” as defined under Section 230 of the Communications Decency Act, and Ohio’s AV law exempts such services.
In December, Yost told the Columbus Dispatch, “I will not stand by and do nothing. If I’m convinced that there are merits to their legal argument, I will seek a change in the General Assembly in the law. If I think their arguments do not have merit, we will file a lawsuit.”
This confusion did not stop a West Virginia state senator this week from introducing an AV bill that similarly exempts “interactive computer services.” A pending bill in Illinois includes the same exemption but has languished in committee for more than a year.
Another type of exemption appears in a New Hampshire age verification bill. As XBIZ reported in November, SB 648 includes language reading, “A commercial entity shall not claim Section 230 immunity under the federal Communications Decency Act as a defense in any civil action arising from a violation of this chapter.” This wording seemingly contradicts the Supremacy Clause in Article VI of the U.S. Constitution. In a hearing before the New Hampshire Senate’s Judiciary Committee, an amendment removing the Section 230 “exemption” was discussed, so the provision may be dropped from future versions.
The VPN Loophole
Finally, media attention around the widespread use of VPNs to circumvent age verification has inspired efforts to close that practical loophole. Two AV bills pending in the Wisconsin state legislature, AB 105 and SB 130, would place the burden on adult sites to “prevent persons from accessing the website from an internet protocol address or internet protocol address range that is linked to or known to be a virtual private network system or virtual private network provider.”
As XBIZ reported last month, Indiana’s attorney general has filed a lawsuit against Aylo, alleging that the company and its affiliates have violated the state's AV law by failing to prevent access by users using virtual private networks to avoid geolocation. Unlike the Wisconsin bills, Indiana’s law does not mention VPNs, but the suit asserts that Aylo is in violation “because Indiana residents, including minors, can still easily access the Defendants’ websites with a VPN IP or proxy address from another jurisdiction or through the use of location spoofing software.” A legal victory for Indiana in the case could embolden other states to pursue similar legal strategies.
Other Pending AV Bills
Age verification legislation is also pending in West Virginia, where a second bill with no mention of “interactive computer services” has begun the committee process. Three AV bills are likewise pending in New York.
In Canada, the Protecting Young Persons from Exposure to Pornography Act is under consideration by the Standing Senate Committee on Legal and Constitutional Affairs. The bill would subject AV-noncompliant adult sites to fines of up to $250,000 for a first offense and up to $500,000 for subsequent offenses, and would require internet service providers to block noncompliant websites. It has been endorsed by Canada’s privacy commissioner.
