Texas age assurance law goes before U.S. Supreme Court

On Wednesday, the U.S. Supreme Court will hear arguments on the constitutionality of HB 1181, a Texas law requiring porn streaming sites to implement effective age assurance measures, and to pay steep fines for noncompliance.
In its coverage of Free Speech Coalition v. Paxton, the Dallas Morning News notes the “sweeping implications for government regulation of speech” across the country. Currently, eighteen states – largely in the conservative U.S. south – have age assurance laws requiring any site on which more than one third of the content is considered “sexual material harmful to minors.”
‘Harmful’ content looks different to those on political left and right
Civil rights advocates, such as the ACLU, argue that the Texas porn law puts undue pressure on law abiding adults engaging in legal activities, who will be asked to submit biometrics or identity documents. They say it could be used to disenfranchise LGBTQ organizations and other political targets of the American right wing. They note the easy workaround provided by VPNs, and worry age gates will redirect users to more extreme corners of the unregulated internet.
Politicians, including Texas Attorney General Ken Paxton, say age verification legislation isn’t trying to take away anyone’s nudie magazines or pin-up girl calendars. Rather, it targets the already-extreme content offered on sites such as Pornhub and Xvideos: graphic and sometimes violent videos that they fear can skew young childrens’ view of sexuality.
As stated in Texas’ court filings, proponents of mandatory age verification believe “no one has a constitutional right to view ‘teen bondage gangbang’ videos.”
Some disagree, noting that the politicians’ argument largely hinges on a moral question, rather than a legal one – i.e., who gets to define exactly what content is “harmful to minors,” and therefore warrants age checks. Critics worry educational resources or online communities that allow minority groups to congregate safely could end up being classified as “harmful” by politicians with conservative Christian leanings.
Big Porn seeks a device-based solution that identifies users ‘at the source’
Porn providers, meanwhile, have hooked their opposition to First Amendment rights. The Free Speech Coalition, a trade association for the adult industry, calls the law “extraordinarily burdensome and invasive, effectively deterring adults from accessing legal content.”
A statement from Pornhub, one of several adult content sites owned by the company Aylo, laments that any effective age verification method requires users to submit personally identifiable information.
“By assigning this responsibility to the platform(s) visited by a user, this means submitting private information many times to adult sites all over the internet, while normalizing disclosure of PII across the internet. This is not a privacy-by-design approach.”
They also object on the grounds of cost – an argument that age assurance providers have questioned, in light of the porn giants’ massive profits. Yet it is not just costs per transaction they must account for: firms deemed to be in violation of age assurance laws face fines up to $10,000 per day, and an additional $250,000 if a child is exposed to pornographic content.
In a show of force, Pornhub has blocked access to users in Alabama, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, South Carolina, Texas, Utah and Virginia.
Aylo and its lot believe “the best and most effective solution for protecting minors and adults alike is to identify users at the source: by their device, or account on the device, and allow access to age-restricted materials and websites based on that identification.”
The Texas decision will set a precedent for age assurance laws across the U.S. It could tug at the seam where contemporary conservatism and libertarian digital capitalism meet – a lively juncture indeed, with Donald Trump’s Republican administration poised to enter the White House next week.
Article Topics
age verification | biometrics | children | data privacy | digital identity | face biometrics | legislation | Texas
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