Utah's elected leaders push new anti-pornography laws that may threaten civil liberties. | Cover Story | Salt Lake City Weekly

June 07, 2023 News » Cover Story

Utah's elected leaders push new anti-pornography laws that may threaten civil liberties. 

The Holy Firewall

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  • Cover design by Derek Carlisle

On May 3, a new state law regulating access to online pornography came into force in Utah. Proposed by Woods Cross Republican Sen. Todd Weiler and a fellow anti-porn legislator—South Jordan Republican Rep. Susan Pulsipher—Senate Bill 287 requires age verification in order to access adult content on the internet within the boundaries of the Beehive State.

But the state's efforts to rein in digital anonymity don't stop there. The new age-verification rules for pornography arrive on the heels of another bill passed this year requiring a government-issued ID to open a social media account.

Gov. Spencer Cox signed both bills into law, citing his intentions to protect the state's children online.

However, unlike a comparable age-verification measure in Louisiana, Utah's SB 287 is overly broad and, as a result, the corporate ownership of one of the world's largest portfolios of pornographic sites and film studios opted to geo-block the entire state of Utah from accessing its adult content due to fears of punitive civil liabilities built into the new law (see sidebar).

While the bill calls for adult sites to adopt a "reasonable" age verification process, it remains ambiguous to many what level of scrutiny is required to avoid legal action. This ambiguity is what led adult megasite pornhub.com to initiate the geo-block mentioned above and, beginning shortly before SB 287's May 3 implementation date, web users who navigated to pornhub were instead met with a landing page containing a clothed video of award-winning porn star Cherie DeVille and a note blaming the firewall on local restrictions.

Using the VPN on my phone, I spoofed my Colorado IP address to a Utah one and logged on to pornhub.com. Lo and behold, there I found DeVille addressing her fans in a rare safe-for-work video.

"Any effective age verification solution must be easy to use, secure and enforced equitably across all platforms offering adult content," said Sarah Bain, a vice president at Ethical Capital Partners (ECP), which recently acquired the Pornhub portfolio—via its parent entity MindGeek—for an undisclosed sum.

During an in-depth interview on Pornhub's new ownership, Bain said ECP is committed to running an open, transparent and legally compliant business, and that walling off the entire state of Utah was one way of following the new law. Pornhub is in favor of age verification mandates—but through a format that is based on devices, says Bain.

"We have seen in Louisiana that requiring age verification via digital ID just makes the internet more dangerous, so even if Utah had in place a digital ID for online use, it would still be counter to the stated goal of the law," Bain explained. "In order to effectively age-gate the internet, we are proposing to governments a tech/IT solution; we strongly believe that the only effective scenario to mandate age verification is at the device level."

Bain said that ECP and MindGeek believe a device-based approach would protect children from accessing age-restricted sites while protecting adult-user privacy, in a way that can be enforced equitably across all platforms.

"The narrow options available are ineffective to the supposed goal," Bain said, adding that ECP "will continue to operate in any state that demonstrates a willingness to work toward a solution that makes the internet safer."

Utah's age verification law hardly does this, Bain said.

Not Safe for You
The Pornhub lockout became a viral story, with many people—including Utahns—calling out Weiler, Pulsipher and Cox and claiming the site's indefinite withdrawal from the Beehive State was the government's fault. And, in many ways, it is.

Free Speech Coalition spokesman Mike Stabile: - Lawsuit needed to insure the rights of all are protected. - COURTESY PHOTO
  • Courtesy photo
  • Free Speech Coalition spokesman Mike Stabile: Lawsuit needed to insure the rights of all are protected.

Consider this: the Free Speech Coalition, a trade group representing the adult entertainment industry, recently filed a lawsuit in Utah's federal district court challenging SB 287 as an unconstitutional violation of the First and 14th amendments. In an email, the coalition's director of public affairs, Mike Stabile, said that the lawsuit is a necessary step toward ensuring that the rights of everyone are protected equally under the law.

"Protecting kids is a worthy goal," Stabile said, "but this is legal speech and legal content, and adults have the right to consume it without getting governmental approval."

The lawsuit—which names state public safety Commissioner Jess. L. Anderson and Utah Attorney General Sean Reyes—alleges that Utah's law is "riddled with vague words, phrases and requirements," and that it violates due process rights as it impinges upon "liberty and privacy in one's own private sexual conduct."

Aaron Welcher, communications director for the ACLU of Utah, responded by email when asked about the organization's position on the Weiler-Pulsipher bill and the state's age verification measures.

"Requiring adults to verify their ages—and expose their identities—before accessing certain websites will inevitably deter them from going to those sites," Welcher wrote. "As seen in the case of Pornhub, sites with adult content—such as entertainment, therapy and educational websites—might shut down access in Utah entirely because the costs and risks involved in trying to comply with these laws become prohibitive."

Welcher is on to something. In addition to the Free Speech Coalition, the suing class against Anderson and Reyes includes D.S. Dawson (an erotica author based in Utah), the company justfor.fans (an OnlyFans competitor website), and the sex wellness and e-commerce platform o.school. Being that the implications of a law that requires a form of age verification could be broadly enforced against platforms that don't even produce or publish porn and adult entertainment content, the legal consensus based on decades of case law could render SB 287 unconstitutional on several grounds, including interstate trade.

"Laws like this are part of a nationwide attempt to burden disfavored internet speech and are part of efforts to make everyone less free," Welcher says. "Elected leaders are attempting to impose a narrow worldview by capitalizing on increased polarization, promoting localized alarmism that only confirms their own bias, and using their power to police the thoughts, beliefs and bodies of Utahns."

Attorney Corey Silverstein: “If I were a taxpayer in the state of Utah, I would be furious.” - COURTESY PHOTO
  • Courtesy photo
  • Attorney Corey Silverstein: “If I were a taxpayer in the state of Utah, I would be furious.”

For a legal perspective from the actual adult entertainment industry, we contacted Corey Silverstein, the managing attorney of Silverstein Legal, based in the suburban village of Bingham Farms outside of Detroit, Michigan. During the interview, we asked whether age-verification legislation, like what is on the books in Utah, makes a jurisdiction a safer and freer place.

Silverstein gave a very direct answer—SB 287 "blatantly" violates First Amendment rights.

"If I were a taxpayer in the state of Utah, I would be furious," he said. "The Utah lawmakers should be held accountable because once their law is ruled unconstitutional, they will have spent millions of wasted tax dollars on an issue that has already been heard and ruled on by the highest court in the land."

Silverstein is referring to the benchmark U.S. Supreme Court decision in Reno v. American Civil Liberties Union. In this case, the high court ruled that anti-obscenity components built into the Communications Decency Act of 1996 were unconstitutional for violating First Amendment rights on the internet. This federal act also established the now-notorious "Section 230," which protects online platforms from liability deriving from user-generated content.

Reno rendered the anti-indecency and anti-obscenity provisions in the act unconstitutional while retaining Section 230, which has been interpreted by most federal courts to encourage web platforms to self-regulate.

But age verification is part of a broader trend across conservative America, with bills targeting not just access to pornography but also bans on LGBTQ+ and queer literature, limiting art in public schools, new attempts to block websites with abortion and reproductive health information and openly criminalizing drag queen competitions.

All of this follows the same concept: if anything touches on human sexuality, it must be pornographic. Utah, Silverstein says, has it wrong "right from the start."

He goes on to state, "Utah lawmakers completely ignore the fact that they have created a law that censors free speech before it even occurs. This is the very heart and soul of the First Amendment. The only thing that this law accomplishes is to block off Utah residents and internet users from accessing certain types of content that Utah lawmakers don't seem to be comfortable with. There is no greater [form of] free speech being trampled on."

Welcher pointed to another case that the national office of the ACLU was involved with in Louisiana. In 2016, Louisiana lawmakers adopted House Bill 153—with then-Gov. Bobby Jindal, a Republican, giving it the green light—making it a crime for any individual based in Louisiana to publish content online that may be "harmful to minors" without an age verification gate on the website. Failure to do so would have resulted in a crime with penalties and fines reaching $10,000.

Representing a bookstore in New Orleans, the ACLU's Louisiana chapter, members of the American Booksellers Association and the Comic Book Defense Fund jointly sued the state's attorney general and prosecutors. That effort—Garden District Book Shop et al v. James D. Caldwell et al—overturned HB 153 as unconstitutional.

No Lessons Learned
Republicans in Louisiana didn't heed the lesson of Garden District Book Shop, it appears. As reported, Louisiana became the first state in the country to adopt an age verification mandate with its implementation of Act 440. And in January of this year, the state began officially enforcing this legislation against online pornography websites.

In an interview with Tim Henning of the Association of Sites Advocating Child Protection—an adult entertainment industry-backed reporting line linked to the National Center for Missing and Exploited Children (NCMEC)—he described a scenario where those involved with Act 440's passage did so without input from the actual industry.

While Act 440 requires an age verification system that is reasonable to purchase or is sponsored by the state (e.g., a digital wallet smartphone application), there was initially no language in the bill dealing with personal data retention obtained in the processes of age verification. It was amended to include such provisions, like immediately destroying digital personal records.

Input on this only included insights from lobbyists representing companies that produce software and countermeasures to accommodate age verification on the internet, with no adult industry firms providing feedback. This creates a bill built upon only a set of a few narrow viewpoints: one religious and one clearly showing favoritism to one piece of the broader industry.

Henning explained that the correct approach would be to prevent young children from so-called "stumble-upons." The term, via the parlance that Henning used, refers to how most minors view adult content randomly or by mistake.

Data does show that some young people have stumbled across age-restricted content while browsing freely on the devices that parents typically allow their children to have. Henning says that legislative interventions that result in age verification need to consider the role of the parents in child internet use, and the fact that most parents aren't sufficiently engaged.

He added that "incorrect and unworkable" approaches include mandates that completely restrict otherwise legally produced content from an age-appropriate audience. He laid out five elements of what an effective piece of age-verification legislation should include.

First, he said, privacy rights are key; lawmakers must craft legislation that protects the rights of adult consumers of age-restricted content. Efficacy is second; these laws must be effective without violating the rights of adult-content consumers or overtly impairing access. Third, age-verification laws must be cost-effective and easy for adult-industry companies, including independent platforms, to adopt and maintain. Fourth, the age verification laws must be applied equitably to ensure a level playing field, applying to all consumers and content producers—including mainstream platforms (Netflix, HBO, etc.) that might feature adult content.

Lastly, as Henning stressed throughout other elements, there are to be no unwarranted barriers for adults to access the content they wish to view and consume. Louisiana and Utah, per these elements, fail to meet all five, he said.

"Key elements to any effective age verification legislation need to have clearly defined purpose and goals," Henning said. "What is the purpose—or goals?"

Briefly, consider the legislative environment in the United Kingdom. The status of an Online Safe bill is currently in negotiation before the House of Lords. But BBC reported in April of this year that the Wikimedia Foundation intends not to enforce the proposed age verification measures outlined in the current draft of the Online Safety Bill, if it is enacted.

The parent organization of Wikipedia (one of the most popular websites in the world) argues that compliance would require a violation of the foundation's policy of collecting as little data as possible about its readers and contributors. A senior figure at the Wikimedia UK operation said they are concerned over the potential for being blocked as a result of such a policy.

Open Rights Group, a digital rights organization, and a slate of other organizations submitted a briefing to the Lords explaining that the bill—having been debated for years now—must not chill freedom of expression. Age verification was mentioned in the briefing, including whether these countermeasures are successful.

In an email, Open Rights Group spokeswoman Pam Cowburn said there is no conclusive evidence that age verification will effectively prevent young people from seeing adult content.

"It may deter some, but if someone really wants to access porn, they can find a way to circumvent age verification," she said. "Age verification laws are an attempt to find a technical solution to a social issue. While these laws may be well-intentioned, they are often ill-thought-through and do not consider the risk to privacy that can come with porn sites gathering data about who is using their platforms."

There is a strong case for the Free Speech Coalition's petition in Utah, as demonstrated thus far. Jason Kelley, associate director of digital strategy for the nonprofit Electronic Frontier Foundation, confirmed this. He said that U.S. courts have consistently "ruled decisively that requiring age verification online in various contexts is a violation of people's rights."

We've seen this in Garden District Book Shop and in other court cases that dealt with age verification and protected forms of speech at the Supreme Court. And as with any over-reaching legislation, the real pain is felt by many of the residents of Utah who believe that SB 287 is a step too far.

All-knowing Lawmakers
Sen. Weiler did not respond to City Weekly's request for comment. But how did Sen. Weiler respond to the criticism from his constituents and others over Pornhub's geo-blocking of Utah? He took to his Twitter in a Trumpian fashion, posting screenshots of emails from concerned, outraged and disenfranchised Utah residents as if it were a joke.

Outside of Weiler's echo chamber, however, not many people are laughing with him as he takes a victory lap as if he won an award for the most morally hygienic mind.

Weiler was recently interviewed by New York magazine's Intelligencer blog, where he told the outlet that he thinks, "Pornhub sees the writing on the wall." The LDS Church-owned Deseret News also interviewed Sen. Weiler, in which he said that "nobody in the Utah government that I've talked to is terribly concerned that Pornhub has decided to turn off the spigot."

Some people beg to differ, as we've already noted at length. I wrote for Techdirt in early May about how VPNs can be used to bypass government- and website-initiated content filtering or geo-blocks. A VPN is quite easy to use and even easier to install on a computer, mobile device, tablet or smart TV. And after SB 287 came online and the Pornhub geo-block was levied on Utah, online searches for phrases including "VPN" soared across the state, according to search trend data from the Cultural Currents Institute.

Most VPN providers offer free or low-cost variations of the technology. But Sen. Weiler addressed VPNs in his New York magazine interview with a rather naïve explanation of how he was not concerned about young people using this technology to circumvent social media restrictions or to view age-restricted content on the internet.

Weiler said that one of the main talking points that critics of his bill use is whether he's heard of VPNs and how they work. "Yeah, I've heard of a VPN," Weiler said, "but 8- and 9- and 10- and 11-year-old boys don't have VPNs."

Unfortunately, data speaks against Weiler's assumptions. Some datasets place millennials and members of Generation Z—the age group Weiler alludes to in part, bordering the younger Generation Alpha—make up 68% of the global VPN user base. Additionally, over a third of the world uses VPNs, and well over 90% own mobile devices. Based on this, what good does Weiler's bill even do?

Adult film star Cherie DeVille: - “[SB 287] doesn’t solve the problem.” - COURTESY PHOTO
  • Courtesy photo
  • Adult film star Cherie DeVille: “[SB 287] doesn’t solve the problem.”

"The biggest problem is it doesn't solve the problem," the one and only Cherie DeVille said in an interview for City Weekly. A prolific writer herself, DeVille elaborates on this in a recent column she wrote for Rolling Stone magazine. "The porn industry wants minors to stop watching our content ASAP," DeVille told me. "It disgusts me that any minor could find my videos! Make it stop."

This is a different sentiment compared to the rhetoric used by Weiler, Gov. Cox and other proponents of SB 287. She elaborated on how age verification mandates—in their current form—will likely do very little to stop minors from viewing adult content if they choose to.

"Utah's legislators think adult performers want kids watching our porn," DeVille said. "We don't want kids anywhere near us because we make adult content for adults, not minors."

In 2021, Rep. Pulsipher was successful in getting a content-filtering law placed on the books through HB 72, which mandates the installation of content filters on mobile devices and tablets sold within the state. This has been characterized as a "porn filtering law" because Pulsipher presented the measure as a tool to stop children from accessing age-restricted content, including porn.

One hitch in the law is that it cannot enter force until five other states have similar measures on their books. Alabama is the latest state to adopt this type of legislation. Others are sure to follow, thanks in large part to coordination by the National Center on Sexual Exploitation (NCOSE). A report by NBC News earlier this year discussed the coordinated effort of circulating model bills to legislatures that are amenable to working with a group like NCOSE. In total, eight states introduced bills that would do what Pulsipher's HB 72 would do.

Ben Goggin, deputy editor for technology at NBC News, found through a variety of chats and interviews with individuals familiar with the coordinated efforts that the "original intention of the model bill was to compel device manufacturers to automatically turn on adult filters" during the process of manufacturing and operating system installation. Goggin reported that the bill was conceived in 2019.

This Is Personal
Collectively, these efforts are focused on controversies that have surrounded Pornhub for years. It is worth noting that Pornhub has always been controversial—even in the adult entertainment space.

Well before the current debate on age verification at regional and national levels, Pornhub and websites like it—known as "tube" sites in the adult industry—were often dens of copyright infringement and unverified uploads, with little concern given for public image and transparency. Former executives of MindGeek rarely came out in the news media or before governmental and NGO-backed task forces fighting child sexual abuse material (CSAM) on the internet.

But the culture of these sites was changing before late 2020, when Pulitzer Prize-winner Nicholas Kristof, an opinion contributor for The New York Times, published a notoriously one-sided investigative commentary that was headlined: "The Children of Pornhub." His column triggered an eruption of condemnation by major credit-card companies, which responded by blocking transactions for their payment and membership websites.

Journalists for several other outlets openly criticized Kristof's reporting as being one-sided and extremely unethical. Elizabeth Nolan Brown, a senior editor for Reason, wrote in a 2022 edition of the magazine that Kristof produced a "highly sensationalistic" piece. She also referred to panic stirred up by NCOSE.

This all culminates into something that is quite personal to me. So much of my work as a journalist and researcher has been focused on the external legal and political moves impacting the adult entertainment industry—including the policy interventions thought up by overzealous conservatives in the Utah Legislature. I have also worked with some of the most popular companies and web brands in the adult entertainment industry.

Thousands of others in the industry have taken up this fight. It's not just our free speech rights at risk; it's our ability to support our families, earn a paycheck and pay our taxes like any other productive member of society. Something that is even more troubling is how little anti-pornography activists, like Sen. Weiler, appear to know about the industry itself.

During his interview with New York magazine, Weiler haughtily claimed that companies like Pornhub don't do "a very good job" in removing child sexual abuse material and NCII (non-consensual intimate imagery) from their platforms. The senator is repeating an often-used, anti-pornography talking point that has been debunked. Even before Kristof's columns, adult entertainment companies had actively engaged in countering CSAM, NCII and criminal uses of their web platforms.


For instance, Pornhub is active in countering CSAM and NCII. This is the case for dozens of other adult firms that manage some of the highest-trafficked websites in the entire world. Now, they even have some of the most stringent reporting policies in the entire adult entertainment industry.

The National Center for Missing and Exploited Children openly participates with the corporate parent of Pornhub on a project called "Take It Down." This new project is additionally supported by Facebook's parent Meta Platforms, TikTok and other adult industry firms, like the parent company of OnlyFans and Clips4Sale. Take It Down is designed to enable people who have been victimized by image-based sexual abuse to privately and securely submit copies of the images in question, scrape the internet for these images and eventually remove them from the host sites.

The approach is innovative and demonstrates the dedication of many adult content companies interested in compliance, ethics and ensuring that consensual age-restricted material is available only to adult consumers. Such dedication can also be seen in recent data, also collected by NCMEC through the group's CyberTipline program.

Shortly after the fallout of the Kristof articles, Pornhub made drastic changes to its policies, deleted millions of videos uploaded by unverified users, started publishing an annual trust and safety report and adopted a mandate that all content published to their sites must be from age-verified users. Included in that change is annual reporting to NCMEC's CyberTipline of suspected cases of CSAM.

Regardless of the Free Speech Coalition's case against Utah or the organizations that coordinate anti-porn campaigns in state legislatures, freedom of expression is at risk. In order to survive the "Holy Firewall" of Utah, people need to step up and say no more to Puritanism.

Plainly, age verification in Utah will fail.

Michael Dean McGrady Jr. is a Colorado-based journalist and commentator focusing on the adult entertainment industry.

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