What's Wrong With Porn ID Verification Laws?
With a spate of new laws passing and others queued up for passage, let's talk about what's the matter with porn ID verification laws.
Recently, I wrote a piece about the new porn identification verification laws in Florida and Texas. That was a brief treatment of the problems with such laws, but, after some comments (that I’m deeply thankful for), I’ve decided to explain it more in-depth so people can understand what’s wrong with such laws. I originally published this over on Medium, but felt that my Substack subscribers should have the chance to read it as well. Thank you paid subscribers for keeping this going. I appreciate it more than words can express. Now…without further ado.
Sometimes, though certainly not always, the best way to understand the present is to understand the past. In the immortal words of Mark Twain, “History doesn’t repeat itself, but it often rhymes.” And even when it comes to breaking new ground, history frequently proves a helpful guide.
In the year 2000, the digital age was in its infancy. Though they didn’t know it yet, the music business was about to be devoured. A simple, yet menacing computer program lurked just beyond the horizon, and the ensuing clash—between record companies and software—would become one of the most infamous cases of tech disruption in history.
Legend has it that Napster, like most tech companies in the Silicon Valley sphere, was born kicking and screaming in a college dorm room in 1999. In the era of tapes and CDs, a Comp Sci student named Shawn Fanning wanted an easier way to share music with friends and built Napster to do just that.
You couldn’t stream media in 1999. When painfully slow 14.4 and 56k modems were the norm, bandwidth was precious, and downloading high-quality files took weeks (or months). But the timing was serendipitous. The mp3 was patented in 1996 and a company called SubPop became the first record company to distribute music via mp3 in 1999. The mp3 sacrificed fidelity for size — not CD quality, but it allowed you to illegally download an album in a few days instead of a few weeks.
With mp3s allowing fast file transfers, Napster rapidly infected the public conscience through word of mouth, and an entire underground network of connected computers sharing music cropped up like mycelium beneath a forest. Understandably, people loved the ease and convenience of being able to download and listen to their favorite songs without having to fork over their hard-earned cash.
Record companies weren’t pleased. There were notable lawsuits from thrash-metal-turned-dad-rock outfit Metallica and west coast G-Funk pioneer Dr. Dre. In 2001, U.S. District Judge Marylin Patel ordered Napster to cease operations until they could ensure they’d purged the networks of all copyright-infringing content.
Exactly 20 years later, a New York Times opinion piece would bring about similar lawsuits against the tech giant Pornhub, and they’d be tasked with the same monumental feat—remove content that violates copyright laws, with an added task of ensuring all actors and actresses depicted in videos on their site were over 18 years old (more on this soon).
Napster was eventually forced to shut down in 2001 (with brief, unsuccessful reprisals), but the record companies and artists who thwarted the software soiled their reputations for years to come. Napster was a beloved piece of tech that made sharing music easier, and the Dre-Metallica-Napster beef caused long-lasting damage. Lars Ulrich is still the butt of many anti-Metallica jokes.
While Napster, like Pornhub later, attempted to scrub their servers and start fresh, Napster failed where Pornhub would later succeed. But the record companies’ victory was short-lived. During Napster’s shutdown, other file-sharing services like LimeWire and Kazaa followed Napster’s lead, filling the void left behind by Napster’s forced closure. While Napster fizzled out, peer-to-peer software continued.
The record companies were forced to admit defeat. Eventually, they lowered the price of music and made songs easily accessible through apps like Apple’s iTunes, but peer-to-peer file sharing still lives on to this day.
Now, it feels like we’re watching the whole scene play out again with another industry. The recent push for porn ID verification laws is a similarly futile attempt to thwart the inevitable. While the intentions behind these laws may seem noble, they often contain unsettling provisions and are likely to have unintended consequences that could harm consumers, the entertainment industry, and the Internet.
Worse, if history rhymes, they’ll fail, just like the music industry’s attempts to stamp out peer-to-peer file sharing. The lessons from the Napster-LimeWire-Kazaa disaster apply to these current attempts to thwart porn.
U.S. States pushing these laws include Florida, Kansas, South Dakota, West Virginia, Arkansas, Mississippi, Nebraska, and Virginia. Texas’ law recently passed, and the Fifth Circuit Court signed and upheld it. We can expect the Texas case to go to the Supreme Court of the United States.
When I say “porn ID verification” I don’t mean a little splash screen that warns the site is for adults over 18 only. These are common in Europe (and used to be in America). This is a different animal. The laws will force porn companies to collect IDs from anyone who visits their sites. This shifts the responsibility from the Internet user (or their parents, if they’re minors) to these companies. Leaving the responsibility with the site’s user makes sense, and it provides the legal cover that makes the Internet possible. Companies can’t police millions or billions of users across the globe in different jurisdictions with different laws.
Here’s the example I gave in my last piece on the subject:
If a website explicitly states that it’s only intended for adults, in the case of porn, or people over 16 in the case of some social media sites, they’ve told the public the intended use of the site. It’s the public’s responsibility to abide by that. YouTube’s age limit is 13 years old, so if anyone under 13 sneaks on, YouTube is in the clear. They warned the kid and the kid’s parents that the site is for anyone 13+ but not younger. Parents could set up parental controls on YouTube, or the browser, or the computer generally. When these laws pass, they pass this responsibility from the parents back to YouTube, in this case, or Pornhub, in the case of the porn laws.
This could have sweeping ramifications for the Internet. If it seems unthinkable that anti-porn laws could spill over to other websites, understand that Florida’s law demands age verification to access porn sites and social media sites (and any site with infinite scrolling, like blogs).
This has the effect of making porn too risky in these states, and many or most large porn companies remove their services from the states altogether. Pornhub has already pulled out of Arkansas, Louisiana, Texas, Mississippi, Montana, North Carolina, Utah, and Virginia after similar laws were passed. Residents in those states can’t access Pornhub without a VPN. The company will shut down its service in Florida in 2024.
There are three fatal flaws with these laws:
They’re misleading.
The whack-a-mole problem.
They’re ineffective and dangerous
Misleading Language
Now, let me just say, if you’re thinking, “I don’t want porn to be easily accessible to small children without parents’ knowledge,” I strongly agree with you (I think nearly everyone in their right mind does). You’d be hard-pressed to find someone who wants to hand hardcore pornography to children. The issue is, these laws are often Trojan horses (metaphorically, not the malware kind) that do much more than force porn companies to ID people to prevent children’s access.
Let’s take the Kansas version of the bill, which has passed the House and the Senate, and now it awaits the signature of Governor Laura Kelly. The Kansas bill allows the prosecution of companies that fail to ID web visitors if their sites contain content that is “harmful to minors.” But, under existing Kansas law, “harmful to minors” is broadly defined, a definition that includes “homosexual acts” and “sexual excitement.” Both are extremely vague, encompassing much more than just Internet porn.
The concern here is obvious, and it’s something we’ve seen countless times before: the legislation of morality will be used to target LGBTQ people. Honestly, I’m instantly skeptical whenever someone evokes children’s safety as a reason for more state control to police morality. Anita Bryant’s innocuous-sounding Save Our Children Inc. is one example among many reasons why. This was a foundation established in the 1970s to prevent the equal hiring of LGBTQ people. History rhymes again.
Kansas law also casts a wide net regarding nudity. What most of us today consider pornography shows penetrative sex with visible genitals (softcore porn shows neither). But Kansas law also bans any display of breasts and buttocks, which means countless Netflix series would suddenly be criminal (and forget about HBO).
The Kentucky and Nebraska versions of the bill also explicitly state that “homosexual acts” are harmful to minors and are thus included. So, does this mean two gay men or lesbian women can no longer kiss each other? By the letter of the law, yes it does.
Like we’re seeing with the IVF disaster now that states have passed strict, broadly-defining anti-abortion laws, these laws risk similarly unintended consequences. Hospitals in Alabama are now stopping IVF treatment because broad legal language has made it too risky to continue the practice that’s helped hopeful parents conceive for decades.
These are just three examples of the spate of laws, some that have already passed, that are similarly broad and imprecise. This is not an area we can afford imprecision. Remember, anti-sodomy laws are still on the books in twelve states, including Texas. If the Supreme Court overruled Lawrence V. Texas, we can expect these anti-sodomy laws will be used again as they were for much of American history in a clearly illiberal (meaning anti-freedom) moral panic that reigned totalitarian control over sex.
The Whack-a-Mole Problem
Most of us remember the 2020 opinion piece from the New York Times by Nicholas Kristof titled The Children of Pornhub and the ensuing backlash. The article told horrific stories of underage girls winding up on Pornhub after being abused and trafficked. The story spread, and the backlash was swift. Pornhub was denounced and shamed by the public en masse, and was forced to change their business practices after the major credit card processors abandoned them.
It felt like a public victory at the time. But skip forward four years later, and while Pornhub has purged its collection of non-consensual, user-uploaded videos (Pornhub was like Napster for porn videos until the article and lawsuits)—but other porn sites haven’t. The public reckoning came for the porn giant, but everyone else has flown undetected under the radar.
Pornhub is pulling out of the states that pass these laws under the same logic. They’ll comply, other, smaller sites won’t, and they’ll lose out (and they’re right). It happened to Pornhub already, and Napster before them. When Napster was shut down, Napster clones germinated. We’ve heard this note before—history rhymes again. It’s a game of whack-a-mole with so many rhymes sprouting up that you’ll never smash them all once and for all.
You can get everything from the music Napster once served to the adult videos shown on Pornhub by illegally downloading them for free and using the same old peer-to-peer software that’s been around since 1999. The battle has been ongoing, and it’s mostly been a cat-and-mouse game, a technological arms race to see who can outwit whom.
The peer-to-peer file-sharing site The Pirate Bay has been around since 2003, and after numerous court battles, stemming at least back to 2008, remains active (you can get porn on it). We’ve seen this tape before. History is rhyming. When we legislate morality, we drive our vices into the shadows of the black markets, creating clandestine pockets of society.
Ineffective and Dangerous
Ultimately, these laws are ineffective for the same reason the anti-file-sharing laws have been ineffective since the early 2000s. One thing we really have to grapple with, if begrudgingly, is the fact that the Internet—from peer-to-peer, to porn, to platforms—has proven immensely difficult to police. It’s difficult for diffuse law enforcement agencies working across counties, states, countries, and continents, to regulate a global internet. Haphazardly passing a patchwork of restrictive laws in a moral panic doesn’t make them effective and isn’t good governance.
These laws anoint the state to become the omnipotent eye observing our online browsing habits. Whether it’s pornography or poetry, most of us are extremely uncomfortable with the state government watching their online behaviors, even if by proxy. Large corporations were selling our data without our consent across the 2010s, and most people were none too pleased when this came to light. Most of us aren’t comfortable being on lists we have no access to or knowledge of that describes our behaviors and habits and can, in theory, be used against us at some future date.
Users can simply use a VPN to make it appear like they’re in another state without these anti-porn laws. This would entirely circumvent the whole process, making the laws ineffective. The only people who would suffer would be those who abided by the law, forfeiting their identification.
Here’s where the “dangerous” part comes in. When we give the state (or third-party agencies) our identification and information, we’re opening ourselves up to all sorts of potential for hacking and identity theft. Max Eddy discussed this in 2023, in his PC Mag article titled Louisiana’s New Porn Law is a Privacy Time Bomb. Forgive the lengthy quote, but this is important:
Ars Technica says that would-be pornography consumers visiting PornHub must first create an account with AllpassTrust — a separate service that appears to offer age verification for all of PornHub’s sibling sites — and are then referred to the LA Wallet service. AllpassTrust’s privacy policy says it only receives age verification in this process.
This is just one example from among myriad adult sites, but even this scenario requires site visitors to trust several entities and create multiple accounts. Bear in mind, too, that other adult sites will likely have their own implementation, with more accounts, more intermediaries, and more opportunities for failure. All of them are unfamiliar to site visitors who, really, just came here to do some personal business and not have to make decisions about whether or not a particular vendor is a good steward of their personal information.
That’s the real privacy threat this law creates: Confusion.
He’s right, it would be confusion, especially for generations who aren’t digital natives and didn’t grow up with an understanding of the threats lurking online. Where there is confusion, there is fertile ground for exploitation. It would be easy to, say, set up a site with naked people on it, pretending to be a porn site, but, under the guise of laws like these, it’s really a phishing scheme set up to collect people’s information.
The risk of identity theft is extremely high.
Legally mandating these risks is irresponsible and unacceptable.
It’s concerning that some parents have seemingly given up on the idea that they can monitor their children’s online behavior. I understand, it must be a challenging and thankless errand to be a parent in today’s world, with the ubiquitousness of tech devices and kids wanting to have the same gadgets other kids have. But we can’t sacrifice our free society on the altar of a strange obsession with children’s safety.
What alarms me the most, is that some of these laws have clauses forcing companies to place disclaimers on their websites that say that porn is harmful to mental health and addictive. Neither of these has been demonstrated scientifically, and the opposite has been shown in all the credible research done. Compelling a company’s speech in the name of morality is reminiscent of 1984, especially when that speech is false.
The porn “problem” (if you think it’s a problem), reminds me of the peer-to-peer “problem” and the drug “problem” before that—we’ve tried mightily to stamp out these things, and we’ve failed at every turn.
Here in the U.S., we’ve criminalized drugs for fifty years under the pretense that we could end addiction by cutting off the supply. It hasn’t worked. We tried the same trick with peer-to-peer software and that failed. Now, are we doomed to forever be the stereo voice singing a duet with history’s most embarrassing rhymes? Or can we learn to sing a different tune?
Rational and dare I say revealing.
Thanks so much for this reply Joe, really interesting.
I am concerned most about the nasty end of porn, the ‘violent’ porn, which I noticed is often cited as a factor in sexual crimes in the UK (recently we had Sarah Everard and Brianna Ghey).
Is it the case that porn is becoming increasingly violent? If so might this be a ticking time bomb for a reversal of the results in the research.
I am also interested in protective regulation of the ‘violent’ porn, rather than a ban of all porn - ID checks are a start (in an industry that seems incapable of self-regulation).
The ‘why’ for the research results would be a fascinating read.
I think I’d prefer it to be ‘correlation is not causation’ because the only alternatives I can think of seem worrying, some sort of sinister need (dominance / misogyny) that is being met with porn that is otherwise resulting in sexual crime?