People who want to browse online pornography in Virginia will have to identify their age using unspecified technology under a new law that goes into effect Saturday.
While the law passed with broad support in the General Assembly, a spokesperson for the Free Speech Coalition, a group representing the adult entertainment industry, said they’re considering challenging the law in court. They’ve already taken legal actions against similar laws in Louisiana and Utah. It’s also not clear how effective the law will be: After Louisiana's law went into effect in January, users noted they could easily bypass restrictions by turning off their phone’s Wi-Fi or by using a virtual private network.
The proposal from state Sen. Bill Stanley (R–Franklin) sailed through Virginia’s General Assembly with nearly universal support. It allows people to sue content providers for “for damages resulting from a minor's access to such material harmful to a minor.”
Stanley said in a February committee meeting that it’s all about protecting children from harmful content.
“If we're going to sit here and just say, ‘Well, there's nothing we can do about it. It's the, you know, darn old internet,’ then we're abrogating our responsibility to our children,” Stanley said.
Gov. Glenn Youngkin signed the bill, which covers websites where at least one-third of the content is “harmful to minors,” in May.
It defines that content as:
| "Any description or representation of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it (i) appeals to the prurient, shameful, or morbid interest of minors; (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (iii) is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors." |
Some studies have connected teenage viewing of pornography to a range of outcomes, including lower mental well-being and sexually objectifying attitudes, although there’s debate on whether watching pornography is a symptom or cause of those outcomes. A survey of more than 1,300 U.S. minors aged 10-17 conducted last year by Common Sense Media, a nonprofit child advocacy organization, found that a majority first saw online pornography before age 13.
To comply with the law, some sites in Louisiana have used an online service called LA Wallet, that state’s driver’s license app. Virginia has no comparable system.
Stanley told lawmakers he’d prefer to let companies decide how best to comply with the rules. The Age Verification Providers Association, an industry trade group, lists a variety of ways to accomplish the goal on its website, including government identification documents, credit agency references and artificial intelligence that gauges users’ age based on the facial characteristics of a photo they submit. The group said age verification tools don’t “create any new databases of personally identifiable information at risk of being hacked.”
But Jason Kelley, the associate director of digital strategy with the advocacy group Electronic Frontier Foundation, said the technology poses several risks. He argued that centralized databases like the one used by Louisiana were vulnerable to hacking and potential tracking. And in the absence of a service like LA Wallet, unscrupulous websites could set up their own “age verification” prompts that were really a ruse to gather users’ personal information.
“I am very nervous for people in states where these laws have been introduced,” Kelley said in an interview.
Kelley predicted the new law wouldn’t withstand First Amendment legal challenges and that some sites would block access rather than comply with it, a strategy Pornhub took in Utah. Representatives for MindGeek, Pornhub’s parent company, didn’t respond to an email seeking comment on whether they’d do the same in Virginia.
Mike Stabile, a spokesperson for the Free Speech Coalition, said in an email they’re looking into the possibility of filing a complaint in federal court.
“Virginians deserve the right to use the internet without worrying that their personal data will be collected, or their visits tracked,” Stabile said. “This is not the same as just flashing your driver's license at a liquor store.”
Stanley could not be reached for comment on Monday; a person who answered the phone at his law practice said he is currently on vacation. But speaking to lawmakers in February, he anticipated possible challenges to the proposal’s constitutionality.
“I think the compelling state interest is the protection of our children,” Stanley said. “And I would rather try and have a supreme court tell me I was wrong then not to try at all.”
