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IdeasThe Online Porn Free-for-All Is Coming to an EndThree decades into the internet era, the Supreme Court finally appears ready to uphold age-verification laws.By Marc NovicoffIllustration by The Atlantic. Sources: Carkhe / Getty; Atlas Studio / Getty.January 22, 2025 Listen1.0x0:0013:54Produced by ElevenLabs and News Over Audio (Noa) using AI narration. Listen to more stories on the Noa app.Updated at 12:40 p.m. ET on January 22, 2025In the pre-internet era, turning 18 in America conferred a very specific, if furtive, privilege: the right to walk into a store and buy an adult magazine. Technically, it still does, for those hypothetical teenagers who prefer to get their smut in print. For practical purposes, however, American children can access porn as soon as they can figure out how to navigate a web browser. Thats because, since the 1990s, America has had two sets of laws concerning underage access to pornography. In the physical world, the law generally requires young-looking customers to show ID proving theyre 18 before they can access adult materials. In the online world, the law has traditionally required, well, nothing. Under Supreme Court precedent established during the internets infancy, forcing websites to verify the age of their users is burdensome and ineffective, if not impossible, and thus incompatible with the First Amendment.That arrangement finally appears to be crumbling. Last week, the Court heard oral arguments in a case concerning the legality of Texass age-verification law, one of many such laws passed since 2022. This time around, the justices seemed inclined to erase the distinction between accessing porn online and in person.Explain to me why the barrier is different online than in a brick-and-mortar setting, Justice Amy Coney Barrett requested of the lawyer representing the porn-industry plaintiffs. Do you agree that, at least in theory, brick-and-mortar institutions shouldnt be treated differently than online? asked Justice Neil Gorsuch.If the Court indeed allows Texass law to stand, it will mark a turning point in the trajectory of internet regulation. As more and more of our life has moved online, the two-track legal system has produced an untenable situation. And lawmakers are fed up with it. Roughly 130 million people today live in states that have a law like Texass, all enacted in the past three years.Elizabeth Bruenig: Pornography shouldnt be so easy for kids to accessTechnology has come a long way since the Court first struck down age-verification requirements. Age verification services are now effective, easily used, and secure enough to be widely deployed. However the Court rules in this particular case, the era of the online pornography free-for-all seems to be coming to a close.Before the internet, limiting children and teens access to porn was pretty simple. Businesses werent allowed to sell porn to kids, and to ensure that they didnt, they were generally required to ask to see some ID.The Communications Decency Act of 1996 was supposed to establish a similar regime for the commercial internet, which only a few years into existence was already beginning to hint at its potential to supercharge the distribution of adult material. The law made it a crime to display in a manner available to a person under 18 years of age any sexual content that would be patently offensive as measured by contemporary community standards.The Supreme Court unanimously struck down this section of the law in the 1997 case Reno v. American Civil Liberties Union, concluding that it amounted to a blanket restriction on speech. The laws biggest problem was its vague and overbroad definitions of prohibited material, but practical concerns about the difficulty of compliance also played a large role in the Supreme Courts ruling. It repeated the lower courts finding that existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. And in a concurring opinion, Justice Sandra Day OConnor wrote, Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an adult zone.After that defeat, Congress passed a new, narrower law designed to survive First Amendment scrutiny. The Child Online Protection Act of 1998 required websites to prevent minors from accessing prurient or pornographic material. That law, too, was struck down, in part because the Supreme Court opined that optional parental filters would solve the problem more effectively while restricting less speech. In the end, parental filters were never widely adopted, and within a few years, kids started getting their own devices, which were mostly out of parents reach.The Supreme Court decisions, and the legislative inaction that followed them, bifurcated the rules around kids access to porn. In the physical world, their sins were tightly controlledno strip clubs, no nudie mags, at least not without a fake ID. Online, they did as they pleased. According to a 2023 report, 73 percent of teens ages 13 to 17 have watched online porn. A young boy or girl can take out their smartphone, type a free porn sites URL into their browser, and be met with an endless array of quickly loading high-definition videos of adults having sex, much of it rough. Seeing an R-rated movie at a theater would require infinitely more work.The first crack in this regime emerged in 2022, when the Louisiana Republican state representative Laurie Schlegel first decided to act. Schlegel, a practicing sex-and-porn-addiction counselor, had been inspired to act after hearing the pop star Billie Eilish describe how porn had affected her as a child. I started watching porn when I was, like, 11, Eilish said on The Howard Stern Show. I think it really destroyed my brain, and I feel incredibly devastated that I was exposed to so much porn.Read: The age of AI child abuse is hereSchlegel was also inspired by the new technology available for online identity and age verification. In 2018, Louisiana had implemented a digital-ID-card app, called LA Wallet, that state residents could use instead of a physical ID. Schlegel realized that the same system could be used to share a users coarse agewhether they are older or younger than 18, and nothing elsewith a porn company. The gateway technology that OConnor noted didnt exist in 1997 was now a reality.Schlegels bill, which passed the State House 961 and the State Senate 340, required businesses that publish or distribute online porn to verify that their users are at least 18, using either a digital ID or another reasonable method. The law initially flew under the national medias radar. (I think there were only two [journalists] that called me in 2022 asking about the law, Schlegel told me.) But legislators in other states took notice, and by 2024, 18 more states had passed similar legislation. In states without a digital identification program like Louisianas, porn sites must pay third-party age-verification providers to use software to compare a users face with their ID photo, held up to the camera, or to use AI to determine if their face looks obviously older than 18. According to a report from the National Institute of Standards and Technology, the average margin of error for these commercial face-estimation services is about three years, meaning that those older than 21 are unlikely to ever need to show ID. In practice, this is much the same as a porn shop back in the day: Most people get through with a quick glance at their face, but people who look particularly young have to show ID.These state laws have some weaknesses. They apply only where at least one-third of total material on a website is pornographic. (At oral arguments, discussion of this fact prompted Justice Samuel Alito to quip, referring to porn sites, Is it like the old Playboy magazine? You have essays on there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?) The law is also toothless against websites that are hosted abroad, including the Czech porn giant XVideos, which hasnt complied at all with state age-verification rules, a fact that millions of teenagers in those states likely already know. Underage users can also evade the restrictions by employing virtual private networks to disguise their IP address.Still, even prohibitions that can be circumvented tend to screen many people away from a given activity, as the countrys recent experience with sports gambling and marijuana suggests in reverse. Three of the biggest porn sites in AmericaxHamster (which contracts an age-verification provider called Yoti), Stripchat (which uses Yoti or VerifyMy, users choice), and Chaturbate (which uses Incode)have chosen to comply with the state laws.The big holdout is Pornhub, the most popular porn site in America and one of the most viewed sites on the internet, with billions of monthly visits. It has stopped operating in all but one age-verification state. (The exception: Louisiana, thanks to its digital-ID program.) In an emailed statement, the company said that the laws have made the internet more dangerous for adults and children by failing to preserve user privacy and nudging them toward darker corners of the internet. A Pornhub spokesperson who goes by Ian (he did not provide a last name) told me that age-verification laws will lead children to seek out porn from even more troubling sources.Joining Pornhub and other porn distributors in opposition are free-speech groups, including the American Civil Liberties Union and the Foundation for Individual Rights and Expression. They argue that the age-verification laws are overinclusive, because they would restrict young peoples access even to a hypothetical website that was one-third porn, two-thirds non-porn. At the same time, they point out, the laws are underinclusive, because, thanks to the one-third rule, they leave kids free to access porn on general-interest platforms such as Reddit and X, which have quite a bit of it. And, the free-speech groups say, device-based content filters are still a better, less restrictive way to achieve the desired result.Much of the supposed burden on free speech centers on the notion that verifying ones age requires surrendering a great deal of privacy. That fear is understandable, given the long history of internet-based companies violating their stated privacy commitments. But a company such as Yoti is not analogous to, say, a social-media company. It isnt sucking up user data while offering a free product; its entire business model is performing age verification. Its survival depends on clientsnot only porn sites but also alcohol, gambling, and age-specific messaging sitestrusting that it isnt retaining or selling user data. Its privacy policy states that after it verifies your age with your ID, or estimates it with AI, it deletes any personal information it has received.From the May 2023 issue: The pornography paradoxFrom a data-protection perspective, all of our data, all the data we collect, is only used for the purpose it was collected fori.e., to complete an age checkand its immediately deleted after the age checks completed, Andy Lulham, the COO of VerifyMy, told me. This is standard across the industry. (One company that appears to trust the industrys assurances of privacy: Pornhub. Following a 2020 article by Nicholas Kristof in The New York Times that drew attention to the sites hosting of rape videos, Pornhub began requiring online age and identity verification, conducted by Yoti, for every performer on the site. Ian, the Pornhub spokesperson, conceded to me that extending Yoti to its users would not raise privacy concerns.)Recent estimates suggest that most kids have watched porn by age 12. Societally, America long ago agreed that this wasnt acceptable. Now, finally, technology has caught up to the intuition that kids shouldnt have unfettered access to porn just because its on the internet.At oral arguments, the Supreme Court seemed inclined to allow Texass age-verification law to stand, although it might first send the case back to the Fifth Circuit Court of Appeals with instructions to subject it to a higher standard of scrutiny than it originally did. Either way, some form of age-gating is likely here to stay.Were we to lose in Free Speech Coalition v. Paxton, weve got some new legislation ready to go, Iain Corby, the executive director of the Age Verification Providers Association, told me. Theyre fighting a rearguard action in the porn industry, but I dont think theyre going to be able to fight for long.Support for this project was provided by the William and Flora Hewlett Foundation.Explore More TopicsSupreme Court of the United States
