SALT LAKE CITY — A federal court on Thursday issued a preliminary injunction preventing the state of Utah from enforcing a legal provision that would make adult websites liable if minors in the state circumvent geolocation efforts in order to bypass age verification.
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, an AV bill that was signed into law in March.
That provision reads: “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 by “imposing significant burdens on, and purporting to regulate, the national and international markets for adult entertainment.”
The rule was set to come into force in May, but was put on hold temporarily after Aylo and the Utah Division of Consumer Protection agreed to a period of forbearance during which enforcement of the VPN rule would be suspended. That period of forbearance was extended after 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.”
That rule was planned to take effect Oct. 8, but Thursday’s order by District Judge David Barlow means that it cannot be enforced pending further action by the court.
“Plaintiffs have demonstrated that Utah Code section 78B-3-1002(3), the actual-location provision, is likely to violate the United State Constitution’s dormant Commerce Clause, that irreparable harm will result, and that the equities favor an injunction,” Barlow wrote. “Accordingly, the court hereby enters a Preliminary Injunction as follows: That Defendants and their agents, employees, and persons in active concert or participation with them shall not enforce Utah Code section 78B-3-1002(3) until further order of this court.”
The order does not prevent Utah from enforcing other provisions of its AV law.
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.
