Texas targets internet infrastructure to enforce age assurance law

Texas Attorney General Ken Paxton, whose case against adult content providers in the Supreme Court set a precedent on age assurance laws for pornography, is testing out new varieties of enforcement against noncompliant sites – and his latest legal victory could have seismic effects on online regulation in the U.S.

A release from Paxton’s office says the AG has “secured a landmark court order to cut off a pornographic website’s ability to operate under its domain name after the company failed to take measures to protect children from the harmful sexual content it published.”

He did so by obtaining a court-ordered writ directing Verisign, which maintains the domain registry, to place the domain in question on a registry lock, hold, or similar status.

With that, motherless.com has lost its ability to operate under that name in Texas.

The site is owned by Kick Online Entertainment, an Australian video livestreaming service intended to compete with Twitch. Per its entry on Wikipedia, media investigations have found that some of Kick’s content creators have apparently committed crimes, such as sexual assault and trespassing, while streaming. “Other content creators of the platform have had sex while streaming, brandished sex toys at children and made sexual remarks toward underage girls.” One Kick streamer died live on camera. Kick is also under investigation in the UK, where Ofcom has already fined it £800,000 (roughly $1.1 million).

Motherless is Kick’s porn streaming site. Per its Wikipedia entry, it played a role in prompting BC teenager Amanda Todd to kill herself, after topless photos of her were uploaded without her consent; courts eventually found Dutch national Aydin Coban guilty on charges of extortion, possession and distribution of child pornography, communicating with intent to lure a child, and criminal harassment.

Paxton’s release says Kick “openly describes itself as a ‘moral free’ company,” and accuses it of continuing to publish and distributing harmful sexual material that was accessible to minors in Texas, in violation of state law. Now, with the motherless domain suspended, Kick can only reactivate it by “posting a $9.14 million bond conditioned on implementing age verification that complies with Texas law and satisfying the civil penalties previously awarded in the case.”

Paxton to motherless: ‘Shut it down’

All of which is to say, Texas loves a dust-up, and Paxton v. Kick is a case of one hardliner versus another, each operating at opposite ends of the regulatory and ideological spectrum.

Paxton’s office says the court order “establishes a huge precedent that websites can be stripped of their domain if they ignore the law and harm children with pornographic content.”

“This affirms that protecting children from pornographic content is not only about collecting a penalty but also shutting down websites that refuse to obey the law. My office will continue to take action against any website that harms kids by allowing them access to pornographic content.”

There is no doubt Paxton’s victory sets another precedent – and this one could actually make platforms worry. Pornhub and other adult content sites that have complied have suffered the fallout in cratering traffic. Age verification laws have, without doubt, hurt their business. The industry, which recently refreshed its core argument against platform-level age checks in an open letter to U.S. lawmakers, has long campaigned for a level regulatory playing field, and warned that age verification measures will force users to noncompliant fringe sites.

In light of the Texas court order, the latter problem begins to look easier to solve. Any porn site not complying, can – at least in Texas – be shut down.

Regulators move beyond websites to internet infrastructure

The global regulatory community is realizing that, in practice, fines don’t mean much to multi-billion dollar businesses. Meanwhile, Pornhub’s decision to block its service in many jurisdictions requiring age verification shows that it equates the negative impacts of platform-level age checks with outright shutdown.

Aylo, which owns Pornhub, deserves credit for trying to follow the law it abhors, and its request that the rules apply to all covered sites, big and small, is entirely reasonable. It is unlikely to stop arguing against platform-level age checks, because of concerns about liability; per its open letter, “the internet is global and it’s impossible to patrol millions of different sites based in hundreds of different countries. Site-based regulation is always going to encourage evasion.”

That may be true – but it is also now true that states can target internet infrastructure, not just non-compliant websites, in enforcing online safety rules. And if it gets to be as easy as calling a domain provider to shut down a site in a certain jurisdiction, that will make it harder for Aylo to argue that internet porn outside its network is an endless swamp of dangerous, foreign-based alternatives beyond regulatory reach.

The larger point is that, like a tree trunk, age assurance continues to grow more layers, and trying to whittle one away at this stage is not likely to fell the whole tree. Paxton’s zeal in pursuing enforcement is the political manifestation of broad public demand for a safer internet. A survey taking the temperature on biometric age assurance tech might yield mixed results.

The Age Verification Providers Association (AVPA) has responded to Pornhub’s letter with an appeal to “a layered approach where every part of the ecosystem plays its part, rather than transferring all responsibility and liability away from the adult platforms – which, incidentally, are where the economic gains and risks ultimately lie.” It is a potent point. Be it Pornhub or Instagram, the site is the goldmine. Its value is defined and determined in part by its risk. The notice declaring that only authorized personnel may enter should probably go beside the door.

Article Topics

age verification  |  regulation  |  Texas age verification  |  United States