Nicholas Tagg
In March of 2023, Utah took a significant step toward preventing minors from accessing adult content by passing one of the first few age verification laws for adult content websites in the United States. In response, Aylo, a prominent player in the adult entertainment industry, blocked access to all of their subsidiary sites in Utah. At the same time, other adult content sites quickly tried to implement new age verification techniques, like facial recognition scans. Furthermore, digital privacy advocates and adult content creators brought a suit against Utah to prevent the law’s implementation, but a U.S. District Court judge dismissed the case for lack of standing and jurisdiction. This has left creators, publishers, and consumers of adult content in the State of Utah in a bind; the impact of this law on them is considerable. The unique way the law is enforced and the absence of a proscribed mechanism for implementing age verification have left many in Utah confused about how to proceed.
Since the inception of adult-rated films, states have been trying to find effective ways of regulating them. The Supreme Court said in Renton v. Playtime Theaters that municipalities can place zoning restrictions on where adult movie theaters are built, and in New York v. Ferber that states can ban child pornography as this serves a compelling “government objective of surpassing importance.” Further, courts have not objected to states requiring individuals to show identification when they enter an adult film store or theater. Producing identification for a clerk is minimally invasive and comes with little privacy risk to an individual, especially compared to a state’s substantial policy interest in protecting children.
In June of 2023, Louisiana implemented a similar law to Utah. Louisianna had previously implemented a government-issued digital ID program that citizens could opt-in to in addition to the standard physical ID card. The digital ID program allows for anonymous remote age verification online; the privacy concerns around this law, though present, are far less significant. In Louisianna, these age-restricted websites can use the government digital ID plug-in, allowing people to verify their age securely. The plug-in alerts the age-restricted site as to whether the person can access it without transmitting private information.
The world is rapidly changing, and states are trying to keep up; a mobile device and a wifi connection are all one needs to access adult content. Different states will take varied approaches to tackle this issue in this constantly evolving world. As in all areas of public policy, without clear and thoughtful legislation, many unforeseen consequences may arise. The primary concern in Utah right now is privacy. By enacting this legislation, Utah has put the privacy of its citizens at the whim of private and, in some cases, untrustworthy companies.
The law requires that companies ensure children are not accessing their sites, leaving many scrambling for what to do next. In Utah, the law is not enforced against these companies. Instead, a private citizen has the right to take legal action against a company if a minor accesses adult content. This legal mechanism, known as a ‘private right of action,’ allows an individual to sue a company for violating a law that protects their rights and safety. It can be a controversial concept, as it can lead to a flood of lawsuits and potentially excessive penalties; in other circumstances, it can also empower individuals to enforce laws that the government may not have the resources to implement. A private right of action is a legal mechanism only some states have implemented outside of specific areas of law, such as HIPPA and the ADA, because of its ambiguity in enforcement.
Utah’s effort to prevent minors from accessing adult content may go too far in the privacy risks it creates. Individuals are right to be wary about being forced to hand over sensitive personal information. We live in the age of data breaches; in 2023 alone, there were over 3,000 data breaches and 25 data exposures. Without a straightforward, safe, and secure method of age verification, there is the risk of a violation of privacy and a leak of sensitive data like birthdays, identification numbers, or, potentially worse, facial scan data. The prospective consequences of such data leaks could include identity theft, financial fraud, and personal safety risks. Given all of this, it is understandable that people in Utah may fear their personal information being disclosed, mainly because many of these websites hastily and haphazardly implemented age verification programs in response.
There is an unambiguous difference in infringement on privacy and the rights of a consumer when a company voluntarily implements an age verification program compared to when the government forces them. Primarily, a company doing it themselves is the free market at work; if individuals feel uncomfortable giving away their private information for age verification, they can find another website. That individual has no inherent right to access that website if they do not want to comply with its policies around age verification. However, when the government requires age verification, the company and citizens no longer have freedom of association.
In offline contexts, the privacy risks implicated in producing identification are significantly lessened. Flashing identification to purchase alcohol or R-rated & higher DVDs is far less intrusive than having to input identification information into a potentially unsecured website. When the individual walks out of a store, the store will not retain any information about that person in a database. The concern in the online context is that once the identification information is entered and received, it will be stored on a server. There will then be private identification information about countless website visitors, all stored on these websites’ servers, with an ever-increasing chance of that data being leaked, hacked, or sold.
If Utah were to have modeled its law similarly to Louisiana’s, then the concerns about privacy and too much government intrusion in freedom of association would be significantly less. As with all online activity, concerns about privacy and confidentiality are always present. Different states must continue to try various programs to tackle this pressing issue until one is practical, easy to use, and secure. Preventing children from being able to access adult content is a laudable public policy goal. However, when states craft these laws, using precise language that is not overly broad, which infringes on privacy rights and freedoms, is crucial.
Student Bio: Nicholas Tagg is a second-year law student at Suffolk University Law School. He is a staff writer for the Journal of High Technology Law. Nicholas received a Bachelor of Arts in Political Science and Economics from Boston College in 2020. Nicholas spent almost three years working in the Massachusetts State Legislature between undergrad and law school.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
