SALT LAKE CITY — Provisions of a Utah law making adult websites liable if minors in the state circumvent geolocation efforts to bypass age verification, which were set to come into force in May, have again been put on hold temporarily.
In April, Pornhub parent company Aylo filed a complaint with the U.S. District Court for the District of Utah, Central Division, seeking an injunction against the “deemed-location” provision of Utah’s SB 73, which was signed into law in March. The renewed “period of forbearance” therefore continues to apply technically only to sites operated by Aylo — though according to industry attorney Corey Silverstein, Utah would find it impractical to enforce the law against any site or company until the pending motion for preliminary injunction is ruled upon. However, Silverstein emphasized that sites and companies should still consult with their own legal counsel in the matter as they may still be subject to enforcement actions.
The law’s “deemed location” provision states: “An individual is considered to be accessing the website from this state if the individual is actually located in the state, regardless of whether the individual is using a virtual private network, proxy server, or other means to disguise or misrepresent the individual’s geographic location to make it appear that the individual is accessing a website from a location outside this state.”
In its complaint, Aylo contended that the deemed-location/VPN provisions of the law threaten adult entertainment companies with civil penalties and potential criminal liability unless they implement Utah’s age-verification regime “for every user of their platforms, anywhere in the world,” which the company argues would constitute “impermissible extraterritorial legislation” since Utah is “projecting its policy choices onto conduct occurring entirely outside its borders, in states and countries that have made different legislative judgments.”
The complaint also argued that the law violates the dormant Commerce Clause and Foreign Commerce Clause by “imposing significant burdens on, and purporting to regulate, the national and international markets for adult entertainment.”
In May, Aylo and the Utah Division of Consumer Protection agreed to the period of forbearance under which the VPN provisions would not be enforced against Aylo until Sept. 3, or longer if the court should require more time to issue a decision.
Earlier this month, however, the Utah Division of Consumer Protection issued a proposed rule implementing SB 73, including criteria for what constitutes an acceptable standard for addressing “geolocation obfuscation.” The rule is planned to take effect Oct. 8.
As a result, the parties in the case agreed on Thursday to extend and continue the period of forbearance until Oct. 22, which is two weeks after the effective date of the proposed rule, or until the Court resolves Aylo’s pending motion for a preliminary injunction, whichever comes earlier.
The parties’ joint stipulation states: “Although Plaintiffs believe that the proposed rule is fundamentally flawed and does not eliminate their claims or the need for relief, this Period of Continued Forbearance allows Plaintiffs to participate in that rulemaking process without the threat of liability in the interim. Additionally, this Period of Continued Forbearance provides the Court with additional time to resolve the current motion for a preliminary injunction, including the discretion to await the outcome of the rulemaking before deciding the motion.”
As XBIZ has reported, the VPN provision in the Utah law reflects growing concern about the widespread use of techniques to circumvent age verification, which has inspired both state and federal efforts to close that practical loophole.
The Utah Division of Consumer Protection is accepting public comments on the rule until Oct. 1.