Tag: Verification

COLUMBIA — Multiple adult entertainment websites have begun restricting access to users in South Carolina now that an age-verification law is officially on the books.

The law sponsored by state Rep. Travis Moore, R-Spartanburg, went into effect Jan. 1. The 2024 Child Online Safety Act was designed to restrict minors’ access to pornographic content online by requiring purveyors of adult entertainment to use “commercially reasonable” methods of using public or private transactional data to verify users’ ages.

“I don’t think it’s disputed that the law itself is reducing the number of minors who are having access to this content, period,” Moore said in an interview. “I mean, any reduction is moving in the right direction.” 

The bill is a nearly identical copy of Louisiana’s Act 440, a bill sponsored by Christian family counselor and conservative state Rep. Laurie Schlegel in 2022 that has since become a template for 17 similar state anti-obscenity laws passed primarily across the South. 

Methods for verifying ages include everything from so-called “digitized identification cards” to independent, third-party age-verification services used by businesses or government agencies to verify users were above the age of 18. Any website that fails to vet the ages of users who were eventually able to access adult content could be found criminally liable and sued for damages, per the S.C. law. 

The bill easily passed through the Legislature. In the House, only Rep. Justin Bamberg, D-Bamberg, voted against the bill in a 113-1 vote, while the legislation passed unanimously in the Senate. But it was not without concerns.

During testimony on the bill last winter, multiple online advocacy organizations warned lawmakers such age verification policies could present significant privacy concerns for South Carolina consumers and potentially violate federal protections for anonymous speech on the internet. Others, including members of the state Senate staff, suggested the legislation could potentially fail to pass constitutional muster under the First Amendment of the U.S. Constitution. Ultimately, lawmakers decided that didn’t matter.

“Sometimes you have to make a policy position,” Sen. Sean Bennett, R-Summerville, said at the time. “One that says our children are important, that our people are important.”

Exodus of porn sites from South Carolina

The result of that policy decision has ultimately been a mass exodus of major pornographic websites from South Carolina. While some websites, like the Cypress-based Hammy Media Ltd.-owned xHamster, have begun collecting South Carolina users’ personal information to access the site, others — like sites owned by adult entertainment conglomerate Aylo — have begun restricting access to South Carolina-based IP addresses entirely, citing their concerns with the liability of managing reams of sensitive user data.

While they do not oppose age verification, Aylo representatives said in a statement, the onus should not be on individual websites but via age-restriction software on the actual devices used to access adult-related content. 

“Unfortunately, the way many jurisdictions worldwide have chosen to implement age verification is ineffective, haphazard, and dangerous,” representatives for Aylo said in a statement to The Post and Courier. “Any regulations that require hundreds of thousands of adult sites to collect significant amounts of highly sensitive personal information is putting user safety in jeopardy. Moreover, as experience has demonstrated, unless properly enforced, users will simply access non-compliant sites or find other methods of evading these laws.”

Some believe that is already happening.

Bamberg told The Post and Courier that he believed South Carolina’s law to be unenforceable and potentially damaging to adult entertainment sites that actually try to moderate their content.

The Aylo-owned site Pornhub implemented major reforms to its rules after allegations it was hosting illegal content on its site in 2020. The company claims its traffic in Louisiana dropped roughly 80 percent after the implementation of that state’s law. But not because people stopped looking for porn, they argued. Instead, users simply migrated to darker corners of the internet that don’t ask users to verify age, don’t follow the law and don’t moderate the content they publish on their sites.

Even though Louisiana implemented a digital ID card called LA Wallet that was ultimately used on Aylo-owned sites, the company said it did little to stem the exodus of traffic. Traffic which, they hypothesized, then went to more unscrupulous sites.

“In practice, the laws have just made the internet more dangerous for adults and children,” they said in a statement.

In the days since the law took effect, that appears to be coming true in South Carolina. Other popular adult entertainment websites checked by The Post and Courier on Jan. 2 appear to have no forms of content moderation in place at all, while the state’s ability to prosecute internet-related crime is already somewhat limited due to the sheer scope of cyberspace. Instead, Bamberg said, it should be on parents to ensure their children are not accessing content they shouldn’t be.

“There’s nothing that the attorney general’s office or anybody’s gonna be able to do about it because it’s the internet,” he said. “It’s borderline impossible to police the internet.”

Moore acknowledged the potential for some of the adverse effects described by critics, including the possibility of users pursuing other means, like virtual private networks, to circumvent geographically-based blocks by pornography companies. But he also argued the burden on companies was relatively small, and that lawmakers have already expressed interest in legislation — like a 2023 “Default to Safety” Act proposed in both the House and the Senate — that would have put the burden for age verification directly on the makers of mobile devices. 

“It’s like any other type of law you pass for any other type of issue like this,” he said. “People are going to find ways around it. But if the overall goal is to to reduce the overall access, I think it’s definitely having that effect.” 

Courts to decide if laws are legal

The legality of South Carolina’s law is still an open question. A series of lower courts have upheld the legality of numerous states’ laws, including the one in Louisiana. The U.S. Supreme Court on Jan. 15 is set to hear arguments in a legal challenge to an identical bill enacted in Texas on the grounds that while states may “rationally restrict minors’ access to sexual materials,” those restrictions must withstand strict levels of scrutiny if they are found to limit adults’ access to constitutionally protected speech.

The issue at the center of the debate is not simply whether age verification itself is unconstitutional, but whether sex and obscenity are inherently intertwined. 

Decades of legal precedent have already determined that is not the case. And by implementing age-verification requirements for sexual content, states like Texas are effectively seeking to restrict adults’ ability to access constitutionally protected forms of expression, attorneys for the American Civil Liberties Union wrote in a petition to the court. 

Supporters of the laws, however, say such legislation is the surest way to ensure young children cannot access obscene materials at a time where it is arguably easier than ever.