Are age verification laws in the U.S. a threat to digital freedom?

In 2022, Louisiana kicked off a trend that’s gaining momentum: making websites with adult content check if their users are over 18, often through government-issued ID. Aimed at shielding children from seeing content meant for adults, this rule is now also in force in eight other states. However, while the goal is to make the internet safer for minors, it’s not without its controversies.

In a stand against these regulations, major adult content sites like PornHub have started banning access to all users in these states by blocking their IP addresses. This drastic step was partly in response to a lawsuit filed by Texas Attorney General Ken Paxton against Pornhub’s parent company Aylo. 

Instead of implementing age checks and potentially facing severe penalties, these sites have chosen to exclude entire states, leaving lots of legitimate users (i.e., adults) in the lurch. This has raised important questions about finding the right balance between keeping minors safe and respecting adults’ freedom of access online.

We’re taking a closer look at how age verification laws are spreading across the U.S., with Florida, Idaho, and South Dakota set to jump on the bandwagon. We dig into the effects of these laws, the legal battles they’re facing, and the ongoing talk about how to navigate child safety while keeping the internet open and free for adults.

Jump to…
What are age verification laws?
Which websites are affected?
What happens if sites ignore these laws?
Why are states suddenly pushing for these laws?
Are age verification and minor social media laws the same?
Which states have an age verification law?
If I live in these states can I still access adult content?
What are critics saying?
Has anyone tried to legally challenge these laws?
The need for a balanced approach

What are age verification laws?

Age verification laws in the U.S. have emerged as a response to concerns about minors’ access to adult content online. First enacted by Louisiana in 2022, such laws mandate that websites hosting substantial adult content must verify that users are over 18 years old, typically through government-issued ID. Several states have adopted similar laws, with at least 12 other states considering them for 2024. 

These laws state that if a website’s material is deemed “harmful to minors”—like sexual content—it must implement state-approved age verification methods. For example, Louisiana utilized a digital driver’s license app for age verification, setting a precedent other states have followed. Failure to comply can lead to legal liabilities, including the possibility for civilians to sue for damages.

Which websites are affected? 

The laws typically apply to websites where 33.33% or more of the content is deemed “harmful to minors.” Porn sites easily qualify. But there are many other types of sites where the verdict isn’t so clear—often ones that offer a wide variety of content. This includes sites that rely heavily on user-generated content. 

Determining if these sites have at least one-third of their content classified as “harmful to minors” is tricky. Beyond explicit content, this could also include material with implied sexual content (i.e., provocative clothing or poses that hint at sexual themes), violence, drug use, or hate speech.  

The law spares certain types of websites, like search engines, cloud storage, and news sites, from having to comply. For the average user, this means their access to diverse online spaces could be restricted, necessitating age verification procedures not just on outright adult sites but potentially on any platform with a substantial mix of content.

What happens to sites that ignore age verification laws?

There are several potential consequences for adult sites that don’t adhere to age verification laws. These laws require websites hosting a substantial amount of sexual content to verify that their users are over 18, typically through government-issued identification or similar methods. Failure to comply brings several potential repercussions:

• Liability for damages: If these sites don’t employ state-approved age verification processes, they could be held accountable. This opens them up to lawsuits for damages if minors access adult content on their platforms.
• Hefty fines: Non-compliant websites may face substantial fines. They could be fined up to 5,000 USD per day for lacking proper age verification, with penalties possibly doubling to 10,000 USD per violation if they’re found to be willfully non-compliant. For example, in Texas, the Attorney General sued Pornhub’s parent company, Aylo, seeking civil penalties of up to 10,000 USD for each day since the law took effect in September 2023 due to the company not complying.
• Criminal liability: Recent legislative proposals in states like Indiana, Tennessee, and Illinois have included the possibility of criminal charges for websites that fail to implement age verification. While no such laws have been passed yet, it indicates a move towards more stringent enforcement measures.

 Some platforms, like PornHub, have opted to block access in states enforcing age verification laws, citing privacy concerns and the complexity of compliance. In other words, they would rather stop traffic and revenue in those places completely than navigate the rules and risk lawsuits.

Why are states suddenly pushing for age verification laws?

The internet changes at a pace so fast that culture and regulations have long struggled to keep up—and the current age verification requirements are, in a way, a form of catching up. It’s a (somewhat delayed) response to the now-widespread accessibility of online pornography. Whether these laws are the right answer is another matter.

It’s illegal for underage people to visit a porn site, and traditionally, websites with adult content have relied on simple self-verification methods, asking users to confirm their age by clicking a button or entering a birth date. These methods, however, lack any real verification. Although search engines and devices offer parental controls and filters, these solutions aren’t foolproof. They need to be actively set up by parents or guardians, who might not have the tech savvy of their younger family members, leaving loopholes in protection against exposure to adult content. 

Moreover, several states have labeled pornography as a public health crisis, pointing to issues like addiction and the negative psychological impacts of extended exposure to adult content. This characterization has spurred legislative efforts to reduce minors’ access to adult content, which is seen by some as a proactive step to protect them.

Are age verification and minor social media laws the same?

Not quite. Age verification laws targeting porn and regulations targeting social media usage by minors both aim to protect young users online, but they focus on different aspects of digital safety. 

• Age verification laws focused on porn specifically limit access to adult content, requiring sites that offer sexually explicit material to verify that their users are legally old enough. The main goal here is to shield minors from material considered unsuitable for them by establishing a digital check that must be passed before access is allowed.
• Emerging social media regulations, like the Utah Social Media Regulation Act, look to mitigate a wider range of online risks faced by minors, beyond just exposure to adult content. These laws aim to bolster parental controls over their children’s use of social media, enforce age verification, and introduce additional safeguards like time restrictions and automatic privacy settings for underage users. For instance, Utah’s law mandates parental consent for a minor’s social media use. 

Both legislative approaches are drawing criticism from numerous parties. This includes technology firms, privacy rights groups, and organizations defending civil liberties, prompting debates on their real-world efficacy, privacy ramifications, and the potential for governmental overstep. More on this below. 

Which states have an age verification law for porn?

As of March 2024, eight states have followed in Louisiana’s footsteps. Arkansas, Indiana, Mississippi, Montana, North Carolina, Texas, Utah, and Virginia have all passed laws mandating age verification for accessing adult content. Now, Florida, Idaho, and South Dakota are poised to join this list. Their bills have cleared both legislative houses, signaling a near-certain enactment of their own age verification laws. 

Source: FSC Age Verification Bill Tracker (last updated March 2024)

However, not every state’s legislative attempt crosses the finish line. Kentucky, Missouri, New Hampshire, New Mexico, West Virginia, and Wyoming have seen their age verification bills hit a wall, failing to pass. 

Looking ahead, several states are mulling over the idea but haven’t made decisive moves yet. Alaska, California, Illinois, Michigan, Nebraska, Ohio, and Wisconsin have introduced bills but are stuck in the legislative process, waiting for further consideration. Meanwhile, Alabama, Arizona, Delaware, Georgia, Iowa, Kansas, Oklahoma, South Carolina, and Tennessee are all in various stages of contemplation.

If I live in these states, can I still access adult content?

Accessing adult content in states with strict age verification laws is still possible using an ID, but it’s becoming harder. With more sites like PornHub withdrawing from markets in these states by blocking local IP addresses, residents are turning to VPNs to access these platforms. This trend was notably seen after PornHub’s block in Texas, where VPN search interest surged by 1,700% in a single-day period, reflecting a growing demand for workarounds to maintain access to these websites amid new rules.

What are critics saying? 

Critics argue that age verification laws, while well-intentioned, might be more harmful than protective—raising concerns over privacy invasions, misuse of personal information, and First Amendment rights.

1. First Amendment challenges

Age verification laws are seen as treading on delicate legal ground, potentially infringing on the First Amendment rights that safeguard freedom of speech and expression. Historical legal precedents, such as Reno v. ACLU (1997), have invalidated similar regulations as unconstitutional, arguing they impose content-based restrictions on speech. Critics fear these laws could broadly limit access to various types of content, not just adult content, curbing free expression on the internet.

2. Privacy risks and data vulnerabilities 

A significant worry is the risk of privacy breaches stemming from the collection and storage of extensive personal data for age verification. This applies not only to adults but also to minors, who may attempt to circumvent these checks. Minors might provide personal details or engage in online activities that leave a digital trail, putting their privacy at risk.

Such a pool of data could attract cybercriminals, potentially leading to breaches that could expose sensitive information. The sites themselves might not have the security safeguards to ensure the data stays safe. This not only puts adults at risk of identity theft and cyber exploitation but, ironically, could put minors—the very group these laws aim to protect—at greater risk of exposure to cyber threats.

3. Misuse of personal information

The collection of personal data for age verification raises concerns about potential misuse. This information could be exploited for unauthorized surveillance, targeted advertising, or even sold without consent. These practices threaten user privacy and autonomy, commodifying personal identities.

4. Limited access to legal content

In response to strict age verification laws, adult content sites have blocked access in states enforcing these mandates, such as Texas and Utah. This limits adults’ access to legal content, potentially driving them towards less secure, unregulated sources. 

5. Broad definitions and potential overreach

The laws often employ broad definitions of “material harmful to minors,” leading to overreach fears. Critics worry these laws could censor or deem benign acts, especially those involving LGBTQ+ individuals, as obscene. There’s concern that these laws could affect broader expressions of gender, sexuality, and the rights of LGBTQ+ people and sex workers.

6. Questionable basis for regulation

Some argue that the health risks of pornography cited to justify these laws are overstated. The addiction narratives are not universally accepted within medical or psychological communities, calling into question the foundation of these regulations.

7. Technical and implementation challenges 

Implementing age verification faces technological hurdles, especially in states without infrastructure like digital ID systems. Concerns over privacy and logistical challenges of compliance are also driving some websites to block access in affected states. Additionally, methods like facial recognition raise privacy concerns and potential errors, complicating compliance efforts in states lacking the necessary technical infrastructure.

Has anyone tried to legally challenge age verification laws? 

Since they were first introduced in 2022, there have been several legal challenges against age verification laws, mostly arguing they might violate First Amendment rights. These challenges focus on the idea that the laws limit free speech and place an unreasonable burden on websites hosting adult content. Here’s a breakdown of the main points from these legal battles:

• First Amendment rights: Groups like the Free Speech Coalition and various adult content sites argue that age verification laws restrict both the websites’ ability to share content and adults’ access to lawful content. They claim this infringes on the freedom of expression protected by the First Amendment.
• Temporary injunctions: Some laws were initially halted by temporary injunctions, such as in Texas, preventing their enforcement. However, these injunctions haven’t always lasted. For instance, the Texas law’s injunction was overturned by the U.S. Court of Appeals for the 5th Circuit, allowing the law to be enforced while under judicial review.
• Enforcement mechanisms: A core issue in these challenges is how the laws are enforced. Critics say the laws are vague about enforcement and lean too heavily on penalties that could unfairly target websites. They worry about broad application, potentially affecting content not meant to be restricted.
• State vs. federal jurisdiction: Opponents also question whether states have the right to regulate internet content, considering the internet’s national and global reach. This brings up concerns about the feasibility and legitimacy of applying state laws to an inherently borderless platform.

The need for a balanced approach

The challenge for legislators is to protect minors online while respecting adults’ privacy and freedoms. Achieving this balance demands a deep understanding of the digital world and openness to alternative strategies that meet these goals without excessive constraints. Enhancing digital literacy and advocating for safer internet use among families could be key protective measures. Additionally, investing in privacy-centric age verification technology that limits data use and maintains anonymity could ease privacy concerns.

Regulatory frameworks should also be dynamic, keeping pace with digital advancements and the innovative nature of online platforms. Collaborating with tech specialists, privacy proponents, and community voices in shaping these laws could result in smarter, more effective policies that honor digital freedoms while protecting the young.

While we don’t claim to have all the answers, ExpressVPN does offer a simple solution to families who want to keep their children off adult sites. Our VPN apps include an adult-site blocker, which does just that on devices with ExpressVPN turned on. If you use ExpressVPN on your router, or purchase our Aircove router, you could use the adult-site blocker on your home Wi-Fi, applying the feature to all devices connected to it and preventing children from turning it off without a password.

What are your thoughts on age verification laws? Do they represent a necessary step for protecting minors, or do they pose too great a risk to digital freedom and privacy? Tell us in the comments below.