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Arthur T Knackerbracket [soylentnews.org] writes:

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Arthur T Knackerbracket has processed the following story [techdirt.com]:

Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn’t violate the First Amendment. 

Good luck with that. 

These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.

Texas’ H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor’s age. Some adult sites have responded to the law by shutting down [houstonchronicle.com] their services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn — the law nannies adults as well, barring them from constitutionally protected speech. 

The district court agreed [courtlistener.com] with the challengers. Laws regulating speech because of its content [mtsu.edu] (i.e., because it is sexually explicit) are presumed invalid. Under strict scrutiny [mtsu.edu], the state must show that its regulation is narrowly tailored [mtsu.edu] to serve a compelling [mtsu.edu] government interest. In other words, the government needs an exceptionally good reason to regulate, and it can’t regulate more speech than necessary. 

The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when it applied [techdirt.com] the lowest form of scrutiny — rational basis review — to uphold [uscourts.gov] the law. But not all speech that is obscene to minors is obscene to adults [casetext.com]. Judge Higginbotham, dissenting from the Fifth Circuit’s decision, pointed out that kids might have no right to watch certain scenes from Game of Thrones — but adults do.

There’s just one problem: Adults do care about age verification.

H.B. 1181 bars age verification providers from retaining “identifying” information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stay private. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit. 

Texas swears up and down that age verification tech is secure, but that doesn’t inspire confidence in anyone following cybersecurity news [404media.co]. Malware is out there. Data leaks happen. 

A bored employee glancing at your driver’s license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point. 

Texas pretends there’s no difference between the bored bouncer and biometric scans, but if you knew the bouncer had an encyclopedic, inhuman ability to remember every name and face that came through the door and loose lips, well, you wouldn’t go there either. 

Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated. But normal people are very reasonably concerned about whether their personal sexual preferences will be leaked to their boss, mother-in-law, or fellow citizens. Mandatory age verification turns people off of viewing porn entirely, and it chills their free expression. 

Sexual preferences are private and sensitive; they’re exactly the type of thing you don’t want leaking. So, of course, sexual content is a particularly juicy target for would-be hackers and extortionists. People pay handsomely to keep “sextortion” [fbi.gov] quiet. If you’re worried about your privacy and you don’t trust the age verification software (you shouldn’t), you’re likely to avoid the risk up front. One adult site [xhamster.com] says only 6% of visitors go through age verification and that even fewer succeed. Thus the chilling effect [mtsu.edu]: even though adult access to porn is technically legal, people are so afraid of having their ID and last watched video plastered across the internet that they stop watching in the first place. 

If the Supreme Court recognizes this and applies strict scrutiny, it will ask whether less restrictive [mtsu.edu] means could protect minors. Back in 2004, the Court tossed out COPA, a law requiring credit card verification to access sexually explicit materials, reasoning [casetext.com] that blocking and filtering software would protect minors without burdening adult speech. Today’s filtering software is far more effective than what was available twenty years ago — as the district court found — and, notably, filtering software doesn’t scan adults’ faces. 

Sex — a “subject of absorbing interest to mankind,” [casetext.com] as one justice once put it — matters. Adults have the right to sexually explicit speech, free of the fear that their identifying information will be leaked or sent to the state. Texas can and should seek to protect kids without stoking that fear. 

Filed Under: 1st amendment [techdirt.com], age gating [techdirt.com], age verification [techdirt.com], free speech [techdirt.com], ken paxton [techdirt.com], porn [techdirt.com], strict scrutiny [techdirt.com], supreme court [techdirt.com], texas [techdirt.com]
  Companies: free speech coalition [techdirt.com]

Of course there’s also the question of what does the age verification provider, or the content provider, do when the government accuses them of not having checked ages correctly and claims that someone under-age was allowed access. The government isn’t obliged to accept the provider’s word for it, they can and will demand proof that the provider did check and that the claimed person’s documents showed that they were of age. How do the providers do that without keeping a copy of the documentation that they’re supposedly not allowed to keep? Every adult out there realizes this, which is why no sensible adult believes their documentation won’t be kept on file.

Neither regulators or judges can demand to see specific, individual evidence of an age check where a law makes it illegal to retain that evidence. To do so would be patently absurd, and not survive the legal process.

A site can instead defend itself by demonstrating it has deployed good quality age assurance. For example, it may show certification from IEEE against their standard P2089.1 or BSI’s PAS 1296:2018, or independent test results which yield a particular level of assurance. Given individual evidence would be illegal, this will clearly be sufficient in the eyes of the courts.

Oh don’t worry, with the current makeup of the supreme court they’ll screw over our first amendment rights to push their religious views onto the rest of us.

They been good on Internet laws so far.

Not in the real world, anyway. The issue is that the data that has to be acquired to make it function is incredibly valuable, and attacker know that…so they’ll be willing to spend a lot of money, time, risk, etc. trying to acquire it. And I don’t just mean technical attacks: they’ll try bribes and threats, intimidation and extortion, and whatever else they can come up with because the potential payoff is worth it.

Can operations be built which will have a fighting chance of withstanding this sort of thing? Yes. They’re called things like “NSA” and “CIA”, and we’ve seen, “fighting chance” doesn’t mean any more than that: it’s not a guarantee. But this requires all kinds of things (including an enormous budget) that are completely out of reach for an age verification service. Given the real world constraints on such a service, there is no way that it can be operated securely.

I’ll bet that the first one that’s set up is compromised before it goes live.

Given how monumentally valuable such information would be to blackmailers and other criminals it strikes me that it would probably not be dishonest or hyperbolic to frame anyone who tries to get such laws in place as actively working to benefit blackmailers.

If any time a politician and/or ‘concerned group of serious adults’ tried to introduce a privacy violating law they were legally required to provide a full and comprehensive record of their online activity over the past year I suspect that a whole lot less of these laws would even be suggested.

More people need to see articles like these.

I almost guarantee that if this issue goes to the Supreme Court, the issue will be treated like abortion:
  1. Since rhe constitutionality of porn age verification isn’t mentioned in the constitution, it isn’t covered by any rights.
  2. And since porn isn’t mentioned in the constitution, the states shou)ld feel free to make their own laws.
  So then we’ll have 50 laws about whether it’s legal for sites to demand age verification.

And of course, the issue of what’s considered porn still won’t be addressed.

i think the comment you’re saying is calling doubting

Therefore, private viewing of x-rated content is illegal. Makes me wonder if this could lead to a cobra effect where users try to find ways to fake their IDs, account sharing, etc. to access porn without giving up their sensitive info.

Age verification is identity verification. It is the thing you see in airports, job applications, government services, etc. It is in only a few places for very good reason, and that reason is to minimize the impact should a data leak occurs. If a website does not have age verification, and a data leak occurs, no private personal information gets released.

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Republicans will not prevent our access to children.

This again?

Strawmen presented by trolls are unconvincing.

“Today’s filtering software is far more effective than what was available twenty years ago”

This claim is at odds with the fact that children are seeing far pornographic content, across far more devices, than ever before. The experience of relying on filtering for the past 20 years has been its abject failure. It is clearly not fit-for-purpose.

The Supreme Court has already set the precedent that obscene content is an exception to the First Amendment which states have the right to regulate to protect children from exposure, just as they protect kids from alcohol, gambling or cigarettes. And as with every other age-restricted product, service or venue, it is always adults who have to prove their age to enable these requirements to be enforced.

welcome to clown school where trolls like you end up at

also thanks for confirming that your from that scum website

Texas just wants to make sure you can’t see the videos of JD Vance humping poor defenseless couches.

Of course JD Vance would never do such a thing, but the guy is weird so…?

Nice blog its very helpfull

Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated.

What? Not that doesn’t actually make sense. You hand wave away those differences if you are some combination of: too stupid to understand the counter arguments, too stubborn/indifferent to care about other peoples and their arguments, or lying.

The hand-waving has nothing to do with ideology. In my humble opinion the hand-waving is an attempt to deceive people about their ideology (probably a value of totalitarianism). As a counter example, they could have kept their ideology (or at least those that I’m guessing they have), and dropped the hand-waving by simply being honest, and saying “No, we believe the govnerment, or maybe just us, should have more(or total) control of peoples sex lives, so your objections are worthless”.

I suppose it’s possible they are hand waving for some of the other possible reasons I listed… but given it’s Texas, I think it’s the lying.

I do not want the government taking over my parental duties.

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