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Notes -
Texas v. Bad Porn Sites
[Past discussion here. I'm going to use "Kick" as shorthand for Kick Online Entertainment. I'm also avoiding the name of the website, both because the entire point is that it doesn't work, and because it's genuinely notorious.]
Reclaim The Net reports:
In the immediate sense, this isn't an End To The Open Internet. Kick isn't some purveyor of deep and uncomfortable truths, and on top of that is an extremely unsympathetic defendant, even by the standards of porn site managers. They got hit with a ruinous fine in no small part because they were in clear violation of the Texas HB1181 age verification requirement, but also because they simply didn't show up. Verisign is a US company subject to any state judge with a court order, and thus almost all .com domain names are subject to their policies, but as other cases have shown, just because one court issues an order doesn't mean another state will actually have to enforce it. Other top-level domains aren't maintained by operators in the United States or maintaining a US presence, though they're likely to play along with ICANN anyway. There's a handful of extant alternative DNS systems, and you can technically navigate to a website without a domain name at all, or by adding a host file record manually... but those things are all toys, impractical or nonviable for even a small website targeting technically adept users. That's why going after the domain name matters to start with.
Kick's website came back up under a .xxx domain name (maintained by GoDaddy, whose past deplatforming decisions make it a particularly strange decision for Kick), and was then taken offline at a hosting level before GoDaddy could get involved, downstream of an unrelated Dutch criminal investigation. Again, maximally unsympathetic defendants. ((To deflate some of the ReclaimTheNet reporting, while the court order says "It is further ordered that as many writs as the state deems necessary shall issue", it doesn't look like the state has gotten a subsequent writ to go after the .xxx domain name.))
But it's still a state court bringing an enforcement action that takes a website off the planet, to enforce a law that only a tiny fraction of that website's users would plausibly be covered by.
There is some novelty in the compliance posture: the court's order requires both financial bond and implementations following state law (and, notably, not just refusing to serve Texas IPs). But it doesn't matter much for this case. Kick is not philosophically predisposed to comply to start with, has no way to credibly demonstrate future compliance, Texas has been pretty vague about what age verification process is acceptable to start with, many of the commercial age verification providers wouldn't want to work with Kick anyway, and actually trying to act on it would require actually ponying up a bond that the state could easily take at any time. Similarly, there's some arguments about the court's statutory authorization, citing Texas Rule 599 that seems more built to satisfy judgements than statutory compliance, but it's a long shot when the court issued the judgment to start with, and it doesn't matter since Kick can't and won't contest it.
Still, a domain name takedown as a court order isn't unprecedented. The Department of Homeland Security has been getting domain name takedowns for reasons ranging from copyright violations to terror designations to deepfakes. There's been far more questionable takedowns, from a raw legal process perspective, than this. And they weren't that effectively reviewable, either: the punchline for the 1dmx takedown, as far as I've been able to search, is that no one's really had to talk about the entire thing when sued. Kentucky threatened to go after a bunch of poker domain names in the 2008-2010 range, though it accepted geo-location blocking.
But there's a bit of a difference in scope. 1dmx was a big deal involving nationwide protests and federal agents and allegedly high-level actors in at least one country's political infrastructure. Kick Online runs/ran a notorious web site that had been a longstanding target of both religious and feminist activists. As a hypothetical, if Gatalog gets blammed, it's going to have done so while making national news and attracted the personal attention of California's governor.
Where does that stop? There's a slope available, and the direction doesn't look great.
This could, theoretically, be the one principled exception for Texas. Age verification is a genuinely hard problem in the sense that people are unusually motivated to bypass it, compliance could theoretically be possible without infringing speech or privacy (even if actual implementations universally do both), and laws focused on protecting children get a bit of a handicap even where they mostly effect adults. We're still talking Ken Paxton, though.
And it doesn't actually matter, because even if Texas' next governor and attorney general had precise and dedicated legalistic compliance to the broadest principles of free speech every case but this one, there's a million other jurisdictions available.
Historically, the average person could depend on a certain apathy: even where a thousand different books of law and ten thousand different judges had the power to rake you over the coals in theory, legal limits like jurisdiction and practical limits like attention and visibility meant it took some real doing in practice. That's less clear a defense, now that every jurisdiction from a one-horse town up can plausibly and reasonably develop grudges against outfits that most citizens have never heard of, and now that states can find personal jurisdiction in an e-mail.
Worse, selecting for randos also selects for people who can't and won't defend themselves. Contesting the case would require funding a lawyer to stand in a highly disfavored setting, in a jurisdiction willing to write laws specifically targeting the company, in a civil case with correspondingly low standards of proof and no right to court-appointed representation for the indigent. Even if Kick could finance it, and that's pretty far from clear, the law in question here applies as easily to a 'business' regardless of income, and where Texas HB1181 only applies to a "legally recognized business entity", there's no legal or practical reason it'd stop there.
I agree. And yet, I think there's something sad about being unwilling to fight. The bare minimum they could have done was file, pro se, one page saying "I deny everything and reserve all rights." They can even handwrite it. That at least gets them away from being handed a default judgment for not showing up. And it's not like they have zero allies either. I'm sure free speech orgs like the EFF, ACLU or similar would have loved to take up the case for free. I think if they had fought, they had a decent chance of finding age verification unconstitutional, since age verification laws in other states have already been struck down (although those only applied to social media).
Yes, I know a fight is costly in many different ways, but what's the alternative? Playing domain registrar whack-a-mole and hoping you end up with a registrar sufficiently immunized from US attacks? Wait for someone else to be targeted and to fight? There's no one else, laws like these always go after maximally unsympathetic targets first before being used on the rest of the population.
Companies can't act pro se. That's a privilege reserved for individuals. The exception is a sole proprietorship, since the business isn't a separate entity from the individual, and some states have made exceptions for single member LLCs, but the general idea is the same: The business is essentially one person. Once two people are involved then there becomes a question of who the person is acting on behalf of, and no state is going to allow a company to "act pro se" by just hiring somebody without a law license to act as the lawyer.
The Supreme Court found the exact law in question to be constitutional, though this happened after the default judgment was entered.
Complying with the law would be a good start
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