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PornHub blocked Utah. Now the constitutional handwringing has begun

Porn actress Ginger Banks stands in the Pornhub booth during the AVN Adult Entertainment Expo, Jan. 24, 2018, in Las Vegas.
John Locher
Porn actress Ginger Banks stands in the Pornhub booth during the AVN Adult Entertainment Expo, Jan. 24, 2018, in Las Vegas.

Update: The Free Speech Coalition has filed a legal challenge against Utah's Online Pornography Viewing Age Requirements law. The complaint is seeking an injunction based on violations of the First and 14th Amendments of the U.S. Constitution.

“The Utah law restricts adults’ access to legal speech and violates decades of Supreme Court precedent,” said Alison Boden, the coalition's executive director in a statement.

Our original story continues below.

When Utahns logged onto adult content site PornHub on Monday, May 1, they were met with a message saying the company has “made the difficult decision to completely disable access to the website in Utah.” The preemptive block came two days before a new state law requiring the site to verify the age of users went into effect.

The move almost instantly sparked conversations about the unintended consequences of the law — and ways for Utahns to get around it.

“What this law ends up doing is ends up pushing people who are looking to reach adult content to less reputable sites, to sites that are operating overseas that have no fear of civil liability from a parent in Utah,” said Mike Stabile, the director of public affairs for the Free Speech Coalition, a trade organization for the adult entertainment industry.

To him, the law incentivizes children and adults alike to search for adult content in places with fewer protections than an established site like PornHub. The site itself echoes that argument while also noting that the ID requirement “is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.”

The law brought forth by Republican state Sen. Todd Weiler doesn’t include an enforcement mechanism for age verification. In a Senate committee hearing in February, Weiler said the “burden will be on the adult website to make sure that the person logging on from Utah can show that they're an adult,” either through “a government ID or another way.”

Weiler added age verification on adult platforms is important because “you should have to prove you're an adult to view pornography because it's illegal for children to view it, and it's illegal for adults to sell it for children.”

Weiler also sponsored a nonbinding resolution in 2016, which former Gov. Gary Herbert later signed, that declared “pornography is a public health hazard.”

Alison Boden, the executive director of the Free Speech Coalition, issued a letter to Weiler, stating she was “stumped” by the new policy.

“The law is so vague — and the requirements for compliance so contradictory — I cannot figure out how FSC members can follow this law,” the letter read.

Responding on Twitter, Weiler pointed to the text outlining what lawmakers say an adult website can do to verify the age of users, like using a digital ID or a third party app to verify age.

It doesn’t ease the constitutional concerns for Chris MacKenzie, the communication director with the Chamber of Progress, a tech advocacy group.

“We think that users could be deterred from accessing this content because of the privacy risks created by sharing their identifying information,” MacKenzie said.

The United States Supreme Court had previously ruled in Reno v. ACLU that the Communications Decency Act — which made it a crime to engage in “online speech that is ‘indecent’ or ‘patently offensive’ if the speech could be viewed by a minor” — was unconstitutional.

From an economic standpoint, MacKenzie added this law could backfire on Utah.

“Pornhub leaving Utah, while some Utah legislators might understand that as a victory, the reality is that it could also represent a reluctance for a broader set of tech services to come to the state because of extreme liability standards,” he said.

Stabile said there is “certainly the potential for a legal challenge” to Utah’s law because there’s precedent “that the Internet is open and free, and that if people want to restrict content, they're welcome to do so on their home devices.”

Even so, the block hasn’t slowed enterprising Utahns. Google searches for Virtual Private Networks, or VPNs, in Utah have skyrocketed. A VPN hides a user's location, allowing them to bypass the restriction even if they’re still in the state.

“Utah went from being sort of in the middle of the pack for search volume in the month of March for VPN as a search term to leading by more than double the search volume for the term VPN,” said Jackson Carpenter, the founder of the Cultural Currents Institute, who released the Google search data.

To Carpenter, the search increase shows despite lawmakers' attempts to “legislate morality on folks,” people still “find their own way to access the content that they want to access.”

Saige is a politics reporter and co-host of KUER's State Street politics podcast
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