In the ongoing policy tug-of-war over age verification measures for pornographic websites, it may be a classic case of premature e-regulation.
As global trials on age assurance tech continue, lawmakers are chomping at the bit to enact laws requiring porn providers to keep kids off their sites. A forthcoming U.S. Supreme Court decision on a Texas age verification law could impact states across the country. The legal scurry risks rushing into hotly-contested digital identification requirements before crucial data is factored in.
Supreme Court decision on Texas age verification has loaded implications
The age assurance debate in the U.S. currently revolves around Texas law, where a case pitting legislators against the pornography lobby has gone to the Supreme Court.
Assembled under the banner of the Free Speech Coalition, representatives from the adult entertainment industry have sued Texas over its law requiring porn sites to implement age verification to prevent minors from accessing inappropriate sexual material. The trade group says the law violates the free speech clause.
An opinion from the Court is not expected until June or July 2025. Were it to rule the Texas law unconstitutional, it would open the door for challenges in other states, such as Utah and Indiana, which have also pursued age assurance laws. However, while free speech has been a popular political talking point recently on both sides of the political spectrum, the more conservative (and, in some cases, Christian) Supreme Court justices seems unlikely to side with pornographers.
Stage of Indiana says porn’s numbers not as big as it claims
That might leave adult content sites to push at laws on a state-by-state basis. They are currently doing so in Indiana, where, according to reporting in the Capital Chronicle, team XXX has asked a federal judge to pause discovery requests in an age verification lawsuit, claiming that they amount to harassment. In response, state Attorney General Todd Rokita has called the industry group’s allegations “outlandish.”
The discovery phase, during which information is exchanged, is set to go until late February – already an extension of two months. According to the porn providers, they were told the process would be simple and easy, then hit with 588 requests and interrogatories, some of which were “irrelevant, overly burdensome, disproportionate to the needs of the case, and harassing and chilling.”
Indiana says its discovery requests are reasonable and relevant, and accuses the industry lobby of padding its numbers.
Regardless, the Texas decision is still in play. The adult entertainment ménage, which includes Pornhub’s parent company Aylo, say Indiana should at least wait until the Supreme Court makes its decision before cracking down on its law, which passed in March. They are also pleading poor, saying age verification would be too costly – a limp suggestion that actual numbers would seem to undercut.
The state, however, says that delaying the process would be tantamount to peacocking: “the stay the Pornographers seek would simply mean that, eight months from now when the Supreme Court issues a decision in Paxton, the parties will pick up the discovery process where they left off, with none of their potential disputes narrowed and no progress made.”
Ofcom ready to wield age assurance compliance whip come January
By the time the U.S. Supreme Court issues its decision, the UK will be at least six months into life under the new Online Safety Act. Passed in October 2023, the law will take effect starting in January, accompanied by the latest guidance on best practices, according to Ofcom.
The UK regulator recently confirmed that UK publishers of online porn are expected to implement “highly effective age assurance tools” under the law, and that enforcement of compliance will likewise begin in earnest in the new year.
“The time for talk is over,” declares Ofcom Chief Executive Dame Melanie Dawes in a release. “From December, tech firms will be legally required to start taking action, meaning 2025 will be a pivotal year in creating a safer life online.”
For its part, the Age Verification Providers Association (AVPA) says its members have been ready for this moment for years – demonstrating that what feels to some like a quick burst of concern has been slowly and steadily building in that sector over time.
Australia’s age assurance trial to issue results six months after law
In Australia, where the government is pushing a law banning kids under 16 from using social media, there is a similar skew in the eager timing of regulation. A report from InnovationAus says the results from the country’s age assurance trial won’t be in until mid-2025 – six months after the proposed age assurance for social media legislation hits Parliament.
The UK’s accredited Age Check Certification Scheme (ACCS) has been selected to run the age assurance trial, which also covers porn sites. Per the report, its testing will consider technologies including “biometric age estimation, email verification processes, and device or operating-level interventions for social media.” The trial is set to begin right away – although the government has not offered a hard start date.
Unsurprisingly, like pornographers, social media magnates are not warm on the idea of mandatory digital age checks. Their own industry consortium has labeled them a “20th Century response to 21st Century challenges.” In the end, the social media platforms may have more to lose than the smut merchants; after all, porn sites make no bones about offering “adult content” – while the likes of Instagram and TikTok likely wouldn’t exist without millions of teenage users.
Article Topics
Age Check Certification Scheme (ACCS) | age verification | Australia | AVPA | digital identity | face biometrics | lawsuits | regulation | selfie biometrics | UK | United States
