How Do You Card Someone for Porn on the Internet? Texas Chose the Worst Option.
The great state of Texas would like you to present your driver’s license in order to watch porn. Yes, you should be creeped out.
In June, Gov. Greg Abbott signed a bill into law that requires internet users to verify their age with government ID in order to access online “sexual material harmful to minors”—meaning porn. On Thursday, after the conservative 5th Circuit Court of Appeals upheld this provision of the law, Pornhub blocked access for anyone in the state of Texas simply trying to enjoy some quality time with themselves.
In lieu of being offered the usual smorgasbord of smut on the tube site, horny Texans are now greeted with a public service announcement written in a combination of legalese and lobbyist-speak: “As you may know, your elected officials in Texas are requiring us to verify your age before allowing you access to our website. Not only does this impinge on the rights of adults to access protected speech, it fails strict scrutiny by employing the least effective and yet also most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors.” (“Strict scrutiny” is a legal standard used in First Amendment cases under which the government must show that it has a compelling need to limit speech and that it’s doing it in a focused way.)
After a federal district court judge found that the law likely violated the First Amendment rights of the plaintiffs—led by the adult film trade association the Free Speech Coalition—the 5th Circuit reversed its decision and allowed the law to take effect.
Pornhub’s statement goes on to say that collecting identification under the law would, in fact, put the privacy of all users at risk. And the site is right: This is both a free-speech problem and a privacy problem. The state’s paternalistic fantasies of cutting off children from dangerous pornography and keeping their souls pure have led it to curb for everyone—including legal adults—the anonymous nature of watching legal pornography.
In theory, it makes sense to card porn users, as happens when one buys a dirty magazine. But online, going further than simply asking users to confirm, on the honor system, that they are of age gets into dicey territory, quickly. Even the best models for collecting government ID, such as through a secure third-party service that automatically deletes data upon verification, may still create a treasure trove of highly sensitive data that can be easily exploited against the user. Collecting that data creates an instant risk, even with the best information security practices. And what might someone pay a blackmailer threatening to reveal a user’s history of visiting kink or fetish sites—or of viewing LGBTQ+ porn, when they themselves haven’t come out?
Data breaches affect all corners of the internet, and any dataset connecting individuals with their porn-watching habits would be sweet stuff for blackmail-happy hackers. Pornhub’s stance is that if age verification must happen, it should occur at the device level, not on the web, as Texas currently mandates. In theory, one’s Mac or iPhone, say, would be able to allow or deny access to 18-plus sites; you’d put in your ID upon setting up the device, rather than having that ID information bouncing around the web. Kind of like a blanket parental control, but mandated by the government.
Texas isn’t the only state to nuzzle up between its citizens and their porn supply—in fact, it’s the seventh. Pornhub’s parent company, the Canadian firm Aylo, has already restricted access to its network of popular sites in Arkansas, Mississippi, Montana, North Carolina, Utah, and Virginia. There’s also one state that Pornhub hasn’t withdrawn from over its age-verification law: Louisiana, which developed a proprietary digital driver’s license that Pornhub thinks is better than the more “haphazard” mandates to verify ID from other states like Texas. “This system isn’t perfect,” as Reason’s Elizabeth Nolan Brown writes, “but it is less invasive than the alternative—closer to a convenience store clerk glancing at someone’s ID than to creating a gigantic porn viewer database linked to real identities.”
Meanwhile, a number of other states have passed kinda-similar-but-kinda-different age-verification laws for social media users as part of a patchwork of efforts to protect minors from the clutches of Instagram and TikTok and the like. Some of these social media laws have been blocked or struck down on free-speech grounds.
Digital driver’s licenses and device-level verification could be steps in the right direction if they can verify identity without risking the privacy of adult users. But the end result of both kinds of age-verification laws is the same: The government wants to get into the business of policing the internet, carding adults, in their homes, for the simple privilege of doomscrolling or watching porn, and taking the complicated question of how to manage internet access out of the hands of parents. A lot of people squirm at that.
The bigger problem, according to Jason Kelley of the digital rights group Electronic Frontier Foundation, is that age-verification laws not only create risk for the user’s privacy but also gate off content that should be perfectly legal for people to see—and legal for them to see anonymously.
“Anonymity and the ability to both speak and receive information without identifying yourself has always been a strong and important part of our rights,” Kelley told me. “It’s not just that there’s a danger in sharing your information, but it’s also the case that anonymous speech is regularly seen over the course of our history as an important right.”
Porn has always been at the forefront of First Amendment fights, and this is just the latest example, Kelley said: “If you lose that protection for that otherwise entirely constitutional speech, you set up precedent where you could lose it elsewhere.” Kelley thinks the constitutionality of age verification could certainly end up with a date at the Supreme Court—a formal venue for the nine justices to decide whether and how the government can play bouncer to the internet’s nightclub.
There’s only one certainty about what’ll happen in Texas: VPN downloads will continue to skyrocket.
