Ineffective, Unconstitutional, and Dangerous: The Problem with Age Verification Mandates

In the wake of Louisiana’s new law mandating the use of age verification (AV) on adult content websites, a flurry of copycat legislation has been introduced by well-meaning but poorly-informed politicians who don’t understand the real-world impacts of the laws they are proposing. 

The Free Speech Coalition (FSC) whole-heartedly supports the goal of protecting young people from material that is age-inappropriate or harmful. As the trade association for the adult industry, FSC has both the subject matter expertise and sincere desire to collaborate with legislators on workable solutions. Unfortunately, the proposals being put forward in statehouses around the country have significant practical, technical and legal problems that will undermine its effectiveness in protecting children, create serious privacy risks and infringe on Americans’ Constitutional rights. 

State AV Laws Will Not Prevent Minors from Accessing Adult Content

The only way that a website can determine whether a user is located in a particular state is to use the geolocation data provided by the user’s device. It is extremely simple to use a Virtual Private Network (VPN) to make it appear as though a user is located elsewhere, thereby evading age checks. In fact, a recent study of middle schoolers (youth aged 11-14) found that 41% of them use a VPN to browse the internet.

Additionally, Common Sense Media (the nation’s leading nonprofit source for media recommendations and advice for families) released a report in January indicating that 58% of teens aged 13-17 have seen adult content accidentally – 18% of which reported that it was on social media. Because this bill only applies to websites where more than one third of the content meets the definition of material harmful to minors, it will do nothing to protect those young people.

The Common Sense report also revealed that 41% of teens reported seeing online pornography during the school day, with a shocking 44% indicating that they had seen it on a school-issued device. 

The Current Proposals Will Endanger Users’ Private Information

Age verification software requires a user to transmit extremely sensitive data –  digitized copies of their government-issued identification, biometric scans, or other forms of up data used by commercial providers – over the internet. 

While the proposed bills laudably bar companies from retaining this information, that does not mitigate the dangers of transmitting it in the first place. The mere collection of this information opens users up to the risk of data breaches. Even good actors and governments struggle to secure this type of data, as we’ve seen countless times in recent years. 

In addition to the risks inherent in transmitting this data to reputable age verification providers, the introduction of this kind of scheme creates a massive opportunity for criminals. Personal information regarding sex and sexuality is highly sensitive, and criminals are adept at exploiting this. In fact, one common extortion tactic reported by the FTC employs a threat to disclose a person’s adult website browsing behavior. 

Even more troublingly, we are already receiving reports in Louisiana of potential identity theft, as criminals set up phishing scams where they pose as an adult site and solicit the upload of identification documents. We expect users to be victimized with increasing frequency by criminals should the law pass.

AV Laws Will Result in Exposure to Illegal Content

Websites that are not bound by U.S. law will be the primary beneficiaries of this bill. Legal adults, when confronted with a governmental request to verify identity during a visit to an adult site will either need to subject themselves to the privacy risks outlined above or go elsewhere. Minors who do not use a VPN to evade the law will do the same.

This will simultaneously punish responsible sites that comply with the law and boost the growth of illicit websites and pirate platforms where they are at an enormous risk of encountering dangerous illegal content such as child sexual abuse material (CSAM) and non-consensual intimate imagery (“revenge porn”). Children will run the risk of becoming victimized themselves.

Requiring Age Verification to Access Adult Content is Unconstitutional

Adult content – even material harmful to minors – is First Amendment-protected speech and the Supreme Court has ruled repeatedly that restrictions on its production and consumption face the highest legal bar: strict scrutiny. 

In Reno v. ACLU (1997), the Court struck down the statutory provisions of the Communications Decency Act (CDA) requiring use of age verification software as an unconstitutional content-based blanket restriction on speech:

“In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and address to one another.”4 

The Court found that the burdens posed by online age verification unnecessarily suppress access to protected speech, and that “less restrictive alternatives” — such as device-level filters — ”would be at least as effective” at barring minors from seeing adult material. The Court pointed to parental controls/filters as a preferred method because they respect parents’ authority to determine what content is appropriate for their children.

How to Keep Children Safe

To be clear: the adult industry does not want minors on its sites. This is why we utilize the “Restricted to Adults” (RTA) label on our sites and platforms. It was created by the nonprofit Association of Sites Advocating Child Protection (ASACP) to standardize a single, consistent, universally recognizable tag for adult material that allows it to be automatically blocked by device-level parental control and filtering software. 

Parental controls and device-level filters are effective tools if parents and schools are willing to use them. Many of us use them in our own households to protect the young people in our lives from accessing adult content, even when using a VPN. This technology not only puts power where it should be – in the hands of parents and caregivers – it is widely available, fully supported by industry, and endorsed by the Supreme Court. 

If your goal is to keep minors from accessing adult content, our industry is willing and enthusiastic to work with you to achieve it. We understand the technology, the consumer landscape, and the practical solutions that can keep minors from encountering adult material while preserving the safety and privacy of Americans and avoiding costly, time-consuming constitutional challenges.

In recent discussions with Free Speech Coalition members, many expressed eagerness to find a self-regulating solution that would encourage wider adoption by consumers. The history of these efforts have taught us that an effective system must: 

  • Use a Shared Standard
    The system must be consistent across platforms and across states
  • Safeguard Privacy
    The system must not be vulnerable to hacking or disclosure.
  • Not Overly Burden Consumers
    Technologies that are familiar and easy-to-use encourage compliance. Overly burdensome technologies encourage traffic to illegal and pirate sites.

Unfortunately, we do not believe the Louisiana law or any of the bills pending in state legislatures meet these criteria and we fear that consumers will at best simply evade the measures, or at worst fall prey to criminals eager to rob and extort them.

The Free Speech Coalition counts many age verification software providers among our members and has engaged a working group of websites, platforms, payment processors, technologists, and business owners to devise workable solutions. Our goal is to provide the greatest degree of reliable age verification with the least amount of risk to the largest number of people. No system will be perfect, but we are confident that we can make significant progress toward keeping children safe online.