MADISON, Wisc. — Gov. Tony Evers on Friday vetoed AB 105, an age verification bill that would have allowed anyone to sue adult content providers for damages over alleged failure to age-verify users in Wisconsin, with penalties of up to $10,000 per violation.
In a letter to the state Assembly, Evers states that he vetoed the bill because he objected to its "intrusion into the personal privacy of Wisconsin residents," and touches upon issues frequently cited by privacy advocates.
"While I agree that we should protect children from harmful material, this bill imposes an intrusive burden on adults who are trying to access constitutionally protected materials," Evers writes. "The bill requires all users, regardless of age, who are attempting to access certain websites to turn over sensitive, personally identifiable information. While the bill does not allow a person who verifies an individual's age to retain identifying information, nothing in the bill prohibits the transmission of such information to a third party such as a data broker or the government. This is a violation of personal privacy.
"Additionally, I am concerned about data security and the potential for misuse of personally identifiable information," the statement continues. "Identifiable information could be intercepted by or transmitted to a third party and used as the basis for blackmail or identity theft. Further, although the bill includes penalties for a business entity who violates the prohibition on retention of personal information, those penalties cannot undo the harm that may occur to an individual who is the victim of actions like blackmail or identity theft as a result of a bad actor obtaining their identity."
Many of those points reflect priorities on which the Free Speech Coalition focused in its engagement with Wisconsin lawmakers on AB 105. FSC Director of Public Policy Mike Stabile met with legislators to discuss the bill's various provisions, and FSC also expressed its concerns to Evers, working alongside allied groups such as the ACLU, Electronic Frontier Foundation and Woodhull Freedom Foundation.
As XBIZ reported in February, the bill originally would have required sites to block virtual private network traffic. That provision was one of the issues Stabile and FSC lobbied against, and it was ultimately removed.
Unusually, the final bill included language stating that “sovereign immunity” could not be used as a defense for failure to implement age verification. The intent of that provision is unclear in this context, as the term generally applies to governments, not commercial entities.
As industry attorney Lawrence Walters told XBIZ, “Sovereign immunity is raised as an affirmative defense by a state, not a private company.”
It is possible that the provision was an attempt to head off challenges over jurisdiction. In February, a federal judge dismissed lawsuits brought against two adult websites in Kansas for alleged violations of the state’s age verification law. The sites’ operators are not based in Kansas, and the judge cited jurisdiction in her ruling, noting that the plaintiff failed to show that the sites purposefully directed their activities at Kansas. The amended complaint in a third, ongoing case attempts to address this issue and establish jurisdiction by arguing that adult site SuperPorn intentionally targeted Kansas residents.
