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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:
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" and20% "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.
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.
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