JEFFERSON CITY/SPRINGFIELD, Mo.—Missouri Attorney General Andrew Bailey, a far-right Republican, promulgated a consumer protection regulation on Wednesday that requires "dual-level" age verification for all websites that host material classified as harmful to minors. This classification covers pornography and adult sexual content.
"Missouri is leading the way by going beyond surface-level protections, implementing a two-layer verification process that ensures minors are kept out—and adult privacy is respected," explained Bailey in a press release posted by his office. State Rep. Sherri Gallick, a far-right Republican herself, also commented, saying, "As adults and mentors, we have a moral obligation to protect children from harm, particularly from bad actors and dangerous situations." Gallick has previously proposed age verification legislation in the state legislature but has failed to get anything through both chambers due to civil liberties and First Amendment concerns expressed by Republicans and Democrats.
AVN has reported extensively on Gallick's efforts, in addition to reporting done by this author for local news outlets like Missouri Independent and Kansas City Pitch.
While the rule is simply proposed at this point, the approach Bailey has taken is considerably extreme compared to other states with age verification laws in place.
Bailey used his power as an elected attorney general who holds state power to determine what is best for the "public interest." And, his definition of what best serves the public interest does not necessarily have to be in the name of what the public demands him to do. State attorneys general have considerable power.
Using that authority, Bailey took the step to circumvent the state legislature and order age verification through proposed rulemaking.
The authority Attorney General Bailey cites comes from a sweeping consumer protection law called the Missouri Merchandising Practices Act (MMPA). Bailey says in the proposed regulation, 15 CSR 60-17.010, that there is a need to protect minors from content that is regarded as pornographic or harmful to minors.
He proposes "dual-level" verification, which is a novel concept not seen in other age verification laws adopted in neighboring states like Arkansas, Kansas and Oklahoma.
Bailey describes this dual-level verification approach as requiring "verification both on the website and the device used to access the content—closing loopholes that allow minors to bypass protections." This is the first time AVN has observed the claim of a "dual-level" verification scheme, which requires device-based verification at the level of the operating system of the device and verification at the level of websites.
This regulation seeks to hold adult industry companies and technology companies accountable for the effort to verify the ages of users in an age checking scheme that, though theoretically possible, would be significantly challenging due to privacy concerns, technical feasibility and the rights of users who are of the legal age to view pornography.
On top of this, Bailey requires the "immediate deletion of age data." This is a typical feature in age verification regulations and laws. However, there is no such thing as instant deletion of data, especially given the complex framework Bailey is envisioning. While age data might be deleted, the associated meta data and digital fingerprint remain.
Furthermore, there is a need to develop the security handshake between a website's age-checking software and the measures adopted by the operating system.
It is possible but very unlikely Bailey is referring to a "double-blind" age check, meaning an age verification measure where a third-party facilitator provider confirms a user meets the age requirements for end use of an adult website by connecting the user's age profile to the requesting website. This approach is more data-minimizing.
The Free Speech Coalition's Mike Stabile, director of public policy for the group, told AVN that he is alarmed at the approach Bailey has adopted.
Stabile said, "It appears to be a massive power grab and a distortion of both the legislative process and Missourians' First Amendment protections." He also added that he was concerned Bailey had used similar tactics against retail giant Target for selling merchandise raising awareness for LGBTQ+ Pride Month.
Corey Silverstein, an adult industry attorney, had a far more biting reaction to Bailey's proposed rule on age verification.
"I’m disgusted by Attorney General Bailey’s actions because he has seemingly taken advantage of a loophole to skip the proper legislative process," Silverstein said. "That is fundamentally wrong. He should have waited for the Missouri state legislature instead of this runaround."
Silverstein added, "It doesn’t matter whether you are a liberal, moderate or conservative, if you are a Missouri resident, I would be highly alarmed by the fact that I have an attorney general representing me who is willing to tiptoe around the law to achieve his own agenda."
