With age assurance law, Missouri joins growing list of states on Pornhub’s blacklist

Missouri’s online safety law, which puts age verification requirements on adult content sites, has taken effect. As of November 30, Missourians looking to access pornography online will have to prove their age using biometrics, ID or other means. However, they won’t be able to do it for Pornhub, one of the world’s most visited adult streaming sites, which has blocked access in the state in protest.

That brings the number of states that Pornhub has pulled out of to 23. Mapped across the country, the blackout makes a more or less solid diagonal stripe from Montana and Idaho to Florida. According to data from the Free Speech Coalition Action Center, western coastal states have yet to pursue age assurance laws, outside of Oregon, where an age check bill failed. Other states where legislation has failed include Colorado, New Mexico and Nevada in the west, and Illinois, New York, West Virginia and Maryland in the east. There are pending bills in several of the states around the Great Lakes, and one in New Hampshire, which remains the only state in New England currently pursuing an age assurance law for porn.

Missouri’s legislation, the Missouri Merchandising Practices Act (MMPA), leans into the analogy with physical stores that sell age-restricted goods. “Age verification has long been required in brick-and-mortar stores distributing pornographic material,” it says, “and Missouri’s law does not differentiate between brick-and-mortar stores and the internet when it comes to prohibiting companies from providing pornographic material to minors.”

The law covers platforms on which more than a third of content could be classified as pornographic. Those that fail to implement effective measures to stop kids from accessing their sites – which Missouri says most of them are guilty of – are committing an “unfair practice” under the MMPA.

In a release, state Attorney General Catherine Hanaway calls the rule “a milestone in our effort to protect Missouri children from the devastating harms of online pornography,” and says she will hold to account powerful corporations that flout the laws. Noncompliance comes with a penalty of up to 10,000 dollars a day.

The legislation also echoes the U.S. Supreme Court’s opinion in Free Speech Coalition v. Paxton, the big ticket case that saw the court side with the state of Texas and its age assurance laws. Missouri argues that “nothing in this proposed rule limits the ability of adults to view sexually explicit material online. The proposed rule simply requires that purveyors of online pornography take certain minimum, commercially reasonable steps to ensure that they are not recklessly or knowingly inflicting significant (and well documented) harms on Missouri’s children.”

Aylo wants Apple, Google in the age check conversation

Aylo, the Canadian company that owns Pornhub and its associated network of sites, has made it clear that it does not consider its U.S. business viable if it must comply with age checks. (It has sung a slightly different tune in the UK, where it has promised to comply with Ofcom’s Online Safety Act, but continues to note how age assurance measures have damaged its traffic.)

However, Missouri’s law does at least feint in the direction that Aylo wants to go. The company’s official stance is that age verification is good if done properly – which from its perspective means at the device level. It says “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. This means users would only get verified once, through their operating system, not on each age-restricted site.”

This argument will grow thinner as more reusable age assurance options enter the market, enabling users to verify their age once, then reuse a proof of age token or encrypted key when asked for age assurance at the site level.

Regardless, while Missouri’s law puts the onus on sites and search engines, it does not let device manufacturers off scot free, stating that “it is an unfair, deceptive, fraudulent, or otherwise unlawful practice for any provider or operator of a mobile operating system present on at least 10 million devices in the United States to provide or operate the mobile operating system unless the mobile operating system has the capacity to provide digital age-verification identification.” This will not be a problem for Apple or Google, but it does loop them into the legislation at a fundamental level. Missouri claims this dual-level age check requirement, along with its rule that all identifying data to be deleted immediately after age verification takes place, creates “the most robust age verification standard in the country.”

Aylo continues to lobby Apple and Google, as well as Microsoft, urging them to support device-based age verification in their app stores and operating systems. However, Missouri has demonstrated that there is a way to fulfill that request without taking responsibility off sites. As social media companies also use their legal heft to push for device-level age checks, while nations forge ahead with law aimed at the site level, the most likely outcome at this point is more age checks, at every level.

Age check laws for social media show different legislative pattern

Whether or not social media platforms will be implicated, or if they can manage to litigate their way out of compliance, remains to be seen. The world is watching Australia, which on December 10 will bring its Online Safety Act into effect, cutting off social media access for youth under 16. Many states and nations are looking to follow suit, but Silicon Valley has more sway and money than the porn industry, and has shown a proclivity to sue at will.”

An article in Jezebel breaks down the scenario in the U.S.

“Half of U.S. states have now either enacted or introduced legislation involving age-related social media regulation. Although a few have advanced all the way to enforcement, most of these bans and quasi-bans are still either stuck in bitter debate within state legislatures, or their enforcement is paused, tied up in nigh-inevitable legal challenges on First Amendment grounds. The stage feels set for one of these state cases to eventually advance all the way to the U.S. Supreme Court.”

The map of states pursuing age assurance laws for social media differs radically from the map of laws for porn, illustrating how the First Amendment factors into the debate. The bulk of legislative activity on social media is in the east; no state west of Texas has a bill in progress.

Article Topics

age verification  |  Aylo  |  children  |  device-based age verification  |  legislation  |  Missouri  |  United States