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Culture War Roundup for the week of January 23, 2023

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"Oi, Bruv, Can I See Your Porn Loisence"

I've made this joke a lot in relation to the serially-delayed and maybe abandoned UK age verification mandate, so it's probably worth talking about Louisiana doing it for real:

Act 440 took effect on Jan. 1 to create a cause of civil action for Louisiana parents whose children access pornographic websites that do not utilize an age verification process. The legislation, sponsored by Rep. Laurie Schlegel, R-Jefferson, passed both chambers of the Republican-controlled Legislature in June with little debate and only a single nay vote — from Rep. Mandie Landry, D-New Orleans...

Last week, Schlegel took to Twitter to defend the law, which has faced criticism for restricting personal freedoms, as well as questions about legality and enforcement.

"This law had bipartisan support and passed almost unanimously in both the House & Senate with close to 50 co-authors, including Democrats and Republicans. It was not a Republican win but a win for children in Louisiana. This bill is about protecting children not limiting adults," she posted. "And thankfully, the technology today allows us to not only protect children from the dangers of online pornography but also protect the privacy of those adults who want to view this material."

Text of law here: it requires porn sites -- or at least most sites with more than 33% of their content matching the law's definition of 'harmful to minors', based around a modified Miller obscenity test -- to use 'reasonable age verification methods', or be liable for unspecified damages and court costs.

In its defense, the law does prohibit age verification companies from retaining "identifying information" (with again unspecified civil damages) after allowing access. For a variety of technical reasons such enforcement would be incredibly impractical, though: it's not clear how a person would find out, would find out who actually did it, and then show damages, without getting any complaint dismissed to early for meaningful discovery, or even with enough certainty to justify starting a lawsuit.

There's a pretty clear and wide potential for harm. Yes, yes, getting your porn tastes revealed to the general world isn't as embarrassing as it might once have been, even as the potential for Implications remains. And while I might trust the average incredibly-sketchy-porn-site or age verification company to secure my personal data that they're totally not supposed to be storing better than, say, Home Depot or EquiFax, that's kinda damning with faint praise. For someone that wants to host material -- increasingly, a necessity to speak in any meaningful sense -- this is a pretty tremendous landmine: not only do I get to wager what a Louisiana court might consider prurient or how it might do math, or what the risks of a teenager even finding my material might be, but also such fun imponderables such as "what impact might an unsuccessful lawsuit have on my job or position in the community".

It's... also not clear how this is going to work, at a pretty fundamental level. There are some deep constitutional questions regarding compelled and anonymous speech, and some annoying legalistic ones like the dormant commerce clause, and this is the sort of thing that's had SCOTUS involved before. And then there's annoying problems like grammar issues, whether the exceptions meant for exclude CDNs or avoid supremacy clause problems with CDA230 would also exclude booru or tube-style sites that do not create content, or how ads get handled period. Nevermind how much of a clusterfuck that "33%" threshold is going to be for all but the most overtly and specifically porn-focused sites: do courts have the infrastructure to handle this when even specialty sites can have millions of files in content? What happens if it changes, and how quickly does a site need to track changes? If a site decides to host a million pages of lorem ipsum or an old copy of wikipedia to pad their SFW side?

((Example: e621 has 3.3 million uploaded images, with 26% of them "Safe" and 20% "Questionable" ratings, though this goes by different definitions than what the law here would involve, or even what non-furries would necessarily define them to be. Do I want to make bets on how the law would go there? No, because the answer is 'don't get in an incredibly humiliating interstate civil suit if you can avoid it'.))

Some is just that none of the authors of the law nor the people promoting it can agree on what, exactly, the harms or scales of damages are. Peter Gheil points to Aella as the prototype of the 'who-cares' side of the progressive and libertarian perspective, and there's a lot of Culture War in that position existing, but there's a lot of positions outside of it (sfw meme). At the other end, there's people who want the extremely unsexy nudity excised from Maus, or object to Gender Queer over one comic panel out of hundreds of pages having portraying someone performing 'oral sex' on a dildo. Presumably Heinlein's later works fall somewhere in this spectrum, or outside of it.

But there's a slightly awkward situation where, in addition to the Baptist-and-Bootlegger coalitions, there's a separate compromise where this sort of law (Utah is considering a similar one, and California's regulatory apparatus might accidentally invent it by parallel means) is vague enough to marry people who simply don't want their ten-year-olds stumbling across the weirdest porn possible after typoing a web search, those who think a seventeen-year-old seeing a nipple will immediately and irrevocably twist his or her sexual orientation, the TradCaths who think showing ankles can lead someone down the path of temptation, the feminists that think showing PIV or bondage will push men to rape or domestic violence, and the feminists that think maybe sadomasochism should start in the late teens, along with every possible or plausible position in-between. Actual policy implementations are going to get a little rougher when practice comes about.

On that bootlegger side, some sites have voluntarily complied: MindGeek-related sites (such as PornHub) have begun requesting Louisiana clients to provide driver's licenses to the third-party LAWallet (which is its own weird mess). MindGeek had been an early adopter for that currently-mothballed UK version and has done some technology work on the verification side, along with being a pretty high-profile target, so it's not a huge surprise, though in turn it's far from clear how many other companies would want to work with them. Or comply at all.

In turn, though, it's hard to not think about where this might go down the road. Many of the objections to porn here generalize beyond it, even if a number of the advocates of restrictions don't (currently) want to expand them. China has recently pushed 'video game addiction' as a concept to the point of restricting gameplay hours, and a general 'social media addiction' is a pretty common political talking point (and tbf, may not even be wrong), and there's been an increasing (and tbf, not even wrong) push to talk about how the human brain doesn't really finish maturing until whatever age the immature-brained speaker wants a matter to add restrictions to.

And a tool to bring identity to a wide swath of internet activity is a pretty nice weapon to leave around waiting for someone to be tempted by it.

You raise some interesting points, but I don't know if any of them are really enough to torpedo this law. Constitutional questions are intriguing and omnipresent, but do they really apply here? It's already illegal in a lot of places to provide minors access to obscene material, and requiring ID to by a porno magazine isn't much different, constitutionally speaking, than requiring ID to view internet pornography. Dormant commerce clause doesn't really apply since sites can target Louisiana IPs. I don't know that the Ashcroft decision really applies here since that case was about a blanket ban on online pornography, not an ID requirement. Your argument about the percentages is more compelling, but even then I doubt a site could get around it; courts don't look too kindly on bad-faith attempts to get around the law through various "gotchas".

That all being said, I still agree with you that the law is stupid and inevitably doomed to failure. The reason? Practicality. One of the notable failings of the legislation is the inability to provide for statutory damages. This means that any award of damages would have to be related to the harm caused in the same way that a personal injury award is related to things like medical bills and missed work. If a woman came into my office and told me she wanted to sue XHamster because her 14 year old son saw a naked boob, I'd have no idea what to even ask for. Nominal damages? How does one quantify that? How much more would it be worth if the kid was traumatized by a rape fantasy or S&M video?

And then there's the question of proof. If the mother walks in on the kid, fine, she can testify. But what if the kid just forgot to open a private browsing session, and dad sees it in his history, and the kid admits it to him? Well, now we need the kid to testify that he was, in fact the one who accessed the website. Actually, the kid is probably going to have to testify anyway, since such testimony will probably be necessary to determine what effect this premature exposure actually had and thus what damages are warranted. I doubt many parents are going to want to subject their teenage children to being grilled by hostile attorneys about their masturbation habits in public. The law itself will probably be upheld even in the absence of an easy way of having it litigated, but does it really matter? In light of what happened in Texas, I think the LA legislature got a little too cute here. Simply having the AG enforce an ID requirement would have been relatively easy, and while there would have been a court challenge, there isn't any obvious constitutional problem. Now they've simple created a law that, by deputizing the public to enforce it, ensures that it won't be enforced.

You raise some interesting points, but I don't know if any of them are really enough to torpedo this law. Constitutional questions are intriguing and omnipresent, but do they really apply here?

That's fair, and trying to predict how courts will take First Amendment reasoning is always a little bit of a guessing game. It's possible that the justices would consider criminal penalties as implicating free speech in ways that civil penalties do not. If they do at all, though, I think Ashcroft is pretty on-point for requiring strict scrutiny and for the 'least restrictive means' testing, at least:

"Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress' goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives."

Now, that was partially a fact-based evaluation: the state did not provide and at that time could not provide evidence that criminal penalties were particularly effective compared to filtering options. But while the calculus has changed a little since -- the "family computer" is far less standard a concept today -- I don't think most of these have changed enough.

I think that's why you don't see a simple statute that could be enforced by the AG as a criminal law or regulatory matter.

This means that any award of damages would have to be related to the harm caused in the same way that a personal injury award is related to things like medical bills and missed work. If a woman came into my office and told me she wanted to sue XHamster because her 14 year old son saw a naked boob, I'd have no idea what to even ask for. Nominal damages?

I'd expect that the typical 'lawsuit' involves a parent bringing a laptop to the legal office, the lawyer's tech getting a list of every site in its history, sending a glorified shakedown letter to every business with offices in the United States but not, actually issuing service to those who don't respond, and then dismissing anyone who actually shows up to the court, which 'solves' a lot of this. A lot of the protections the adversarial system provides depend pretty heavily on being able to get a lawyer half-way across the country on short notice, and for smaller shops that probably won't be in the cards.

That said, for actual cases, I agree this is the most immediate limitation. The intended test case-for-actual-courtrooms might have some trivial-but-uncontestable damages, like where the kid used a credit card without the parent's consent, and then tries to mug as much at the jury or judge as possible on anything else, then exploit the legal fees mandate a la the Westboro approach (note that it's specifically shall for both new actions) as hard as possible. Louisiana does have odd rules for punitive damages where not specified by the statute for annoying historical reasons, though I don't know enough on it to say if it matters here.

Alternatively, the intellectual sponsors of the bill may look for the worst cases -- where a minor ends up groomed, abused, or tricked into uploading unlawful and humiliating content. Damages and fault are still a mess to estimate, especially given that a lot of the most anti-porn people will find 'ended up trans' was 'because' of porn, but revenge porn cases have sketched out a number of related test cases for simple matters, and it's far more likely to make the defendant as unsympathetic as possible.

On its own, I don't think that's unusual; there's too many statutes that allow random shakedowns. But add in a regulatory and financial infrastructure that's very vulnerable to pressure, and a lot of very valid reasons for people to be risk-averse themselves, and it can have pretty broad effects if popularized.

I doubt many parents are going to want to subject their teenage children to being grilled by hostile attorneys about their masturbation habits in public.

Unfortunately, I don't think you need a huge number. While not an exact parallel, the Americans with Disabilities Act had (and has) quite a number of people making pretty similar defenses, where a lot of hypothetical abuse would be limited because making court pleadings and testimony would often be humiliating. And for the median person, that's true! But on the tail end, you have people producing thousands of filed suits (in addition to whatever number of complaints and unfiled threats-of-suit), sometimes involving pretty humiliating avowances and courtroom testimony. Nor is it some special exception: there are multiple state laws informally named after and immortalizing (what I hope was) a 14-year-old's most humiliating day so far.

It's also unenforceable -- if there's one group that I would trust to figure out which shady sites (likely ones who are out of reach of US civil courts) aren't enforcing the ID requirement (and/or deploy VPNs to present themselves to the site as residents of a 'safe' jurisdiction), it would be porn-hungry teenage boys.

Easy to enforce if the state has the will to do it, unless you think other things (like CP bans) are also unenforceable.

Pretty much every country in the world is on board with CP bans, and there's major international infrastructure for the location and prosecution of offenders -- if regular porn were subject to the same sort of campaign, maybe -- but that is not the world in which we live.