Why worry about age verification? “That’s the parents’ job.” “What right does the government have to force me to protect children?” “There is no law in the United States requiring online age verification.” “Age verification devices do not always work, and cost too much.” “They interrupt our traffic flow, and cause us to lose sales.”
The same arguments have been continuously repeated in an effort to avoid implementation of mandatory online age verification. Nevertheless, whether the adult industry likes it or not, the era of the adult website without age verification is over. The adult Internet industry has matured to a level that requires it to accept responsibility for verifying that end users are indeed adults. Adult webmasters can no longer avoid the issue based on the misinformation and excuses that abound in the industry.
New legislation is pending that would require all adult websites to implement a form of age verification approved by the Federal Trade Commission (FTC).[1] A “blacklist” of noncompliant websites would be created for some unstated purpose.[2] Credit card processors would only be permitted to service adult websites that incorporate some approved form of age verification.[3]
This bill is clearly a reaction to the dismal age verification efforts previously undertaken by the online adult industry. Webmasters are up against the wall, but still have their fates in their own hands. They can either take this issue seriously by adopting a high level of voluntary compliance on their own, or the government will be more than happy to step in and provide mandatory compliance requirements, which will dramatically impact the ability of U.S.-based adult-site webmasters to compete in the worldwide marketplace.
Mainstream media industries long ago learned that self-regulation is the best medicine to avoid government intervention—an alternative that often spells disaster for the regulated industry. The Motion Picture Association of America (MPAA) voluntarily adopted a ratings system for Hollywood movies to avoid government censorship. The video game industry adopted an even more complex and descriptive ratings system for games with violent or sexually-oriented themes.[4] The mainstream music industry came close to mandatory warnings and labels before it voluntarily agreed to adopt an explicit lyrics warning system on its own.[5]
These industries recognized that some degree of voluntary compliance was essential to stave off mandatory legislation. Family values groups and conservative lawmakers will always seize the opportunity and utilize an industry’s failure to address child protection issues as a means to garner support, increase donations, and rally their base. The online adult industry is a sitting duck for these kinds of political shenanigans. While it’s difficult to deal with the complicated issue of underage access to online adult material, the subject must be immediately addressed if the adult industry is to continue enjoying the level of success and free reign that it has experienced for nearly ten years.
Recent statistics reported to lawmakers on access by minors to adult material are shocking and will certainly motivate Congress to address the problem in the absence of immediate, substantial, and/or voluntary compliance by the industry.
For example, researchers allege that: (1) only 3 percent of adult websites require age verification beyond the honor system; (2) the largest group of viewers of explicit materials is children between 12-17 years old; and (3) 74 percent of adult websites display “free” content.[6]
Statistics like these, while certainly subject to debate and questions about their accuracy, will be accepted as gospel truth by the average citizen who is fed up with receiving multiple hardcore spam emails every day in their inbox. Irresponsible promoters and affiliates who disseminate such materials are causing immense harm to the majority of otherwise responsible, ethical webmasters who seek to scrupulously avoid child customers. While the American lawmakers will not be able to have any impact on foreign webmasters or affiliates who are not subject to U. S. laws, the responsible American webmaster must lead the way by implementing creative, viable age verification before any access is provided to sexually explicit materials. Such efforts may head off governmental attempts to impose age verification requirements that are not realistic, functional, or practical for the webmaster who’s trying to compete in the global marketplace.
But what about the issues mentioned in the first paragraph of this article? Let’s take them one by one.
“Parents should protect children from adult media”
When it comes to protecting children from being exposed to inappropriate materials on the Internet, it is easy to attempt to shift the obligation away from the webmaster and toward the parents; however, this is not a viable option in the current social/political climate.
Although parents must act as the final gatekeeper when it comes to exposure to any form of information or media, billion dollar industries – such as the online adult industry – take on a certain level of responsibility to protect an underage audience from age-restricted materials or services. This expectation is fueled partly by the substantial revenues available (or perceived to be available) in the industry. But the obligation also stems from the use of a public communication tool upon which the average citizen is becoming more dependent for everyday activities.
Just as the airwaves are held in the “public trust” by radio and television stations in exchange for their agreement to honor a certain code, those who utilize the Internet to communicate or distribute commercial goods have a perceived obligation to honor a similar implied code of good faith and fair dealing. Failure to honor that code will result in a public backlash.
While most Internet users do not inadvertently become exposed to adult materials, the rampant exposure to adult-oriented spam email and the common use of misleading domain names that redirect the user to adult websites have resulted in increased, widespread accidental exposure to sexually explicit materials. The public has had enough and demands some form of voluntary compliance or governmental regulation to deal with this issue. Thus, while we can all agree in principle that parents have the primary obligation of protecting children from exposure to explicit materials—or anything else that they do not want their children to view—the freedom to use the Internet as a tool for profiting from the distribution of erotic materials brings with it socially imposed responsibility to ensure that age-restricted materials are directed at – and consumed by – the appropriate audience.[7]
“Age verification does not work”
There can be no dispute about the fact that online age verification has not reached a level of perfection. Underage users will inevitably break through any form of age verification currently on the market—pending developments in biotechnology that will ultimately allow websites to screen users by retina imaging, fingerprints, or bone mass scans. However, the level of advancement that has so far been achieved should not constitute a reason for failing to implement one or more forms of age verification. Neither the government nor society demands perfection in this regard. Minors regularly purchase alcohol and cigarettes—yet these products continue to be available on a widespread basis. Should legislation like the aforementioned bill proposed by Rep. Blanche Lincoln of Arizona become law, the approved forms of age verification that webmasters must implement will not be 100 percent perfect. However, what is expected by society and the government that represents it is some good-faith attempt to exclude minors from adult websites.
Most state laws that forbid the sale of pornography to underage individuals contain a “safe harbor” defense, allowing retailers to escape prosecution if they undertook some good-faith effort to prevent the sale of age restricted media to minors. This can be something as simple as requiring the clerk to retrieve such items or enforcing a strict proof-of-age policy from persons who appear under the age of thirty. While none of these efforts will prevent all minors from getting their hands on a copy of Hustler or Penthouse in the brick-and-mortar world, society is prepared to accept some degree of imperfection so long as reasonable efforts are undertaken. Thus, while each age verification device has its weaknesses, something is better than nothing.
One final note: Significant incentive exists for webmasters to be among the first to implement real age verification on their websites. Those webmasters will be in a position to argue that they are doing more to protect children from exposure to inappropriate material than the majority of the industry. Assuming the remaining webmasters ultimately see the light – and the industry adopts age verification en masse – this argument cannot be made for very long. However, there is a unique, albeit fleeting, opportunity for webmasters to set themselves apart from the norm by implementing age verification before it becomes the industry standard.
“Age verification will decrease traffic and revenue”
In the short term, the implementation of any age-check device will likely have an effect on both traffic and revenue. Navigation of age verification screens conflicts with the inherent laziness of the average web surfer. Some companies that have experimented with age verification devices indicate, however, that the lost traffic falls into the category of “junk” that merely eats up bandwidth and costs more than it is worth. Whether or not this is true, the industry must come to terms with the fact that protecting minors from exposure to explicit materials comes with a price. However, in paying that price, webmasters receive significant legal protection and invaluable political benefits.
Once age verification becomes commonplace, the costs associated with implementation of these devices will significantly decrease, since the end user will become accustomed to – and be forced to use – some form of age verification on most adult websites. The user’s option to simply choose an alternative site without age verification will quickly disappear. On balance, though, the benefits of implementing age verification far outweigh any potential revenue or traffic losses that may be experienced. Several companies that have implemented age verification on their network of websites have reported to this author that they experienced twofold, threefold, or even fourfold increases in profits after doing so—despite the initial expectation of decreases. While an argument can be made that those increases could have been even higher without age verification, one criminal prosecution or civil claim resulting from access by minors would quickly eat up any increased profitability potentially realized by omission of an age verification solution.
“There is no law requiring age verification”
Not true. Significant misinformation has been circulated in the adult webmaster community about this issue. Initially, almost every state has adopted a statute prohibiting the retail display or sale of sexually explicit materials to minors. Some of the statutes specifically prohibit doing so via computer, and others are vague in their potential scope. Some of these state laws have been struck down,[8] although most are untested in the courts. A local prosecutor with a thirst for headlines could certainly initiate a criminal charge against a website operator who fails to implement a viable form of age verification. While the courts may ultimately find constitutional problems with any given state statute, prevailing in court is never guaranteed. Moreover, as the U.S. Supreme Court appears to be swinging toward the conservative side, civil liberties cases will become more difficult to win.
In addition to state law concerns, it should be noted that the Child Online Protection Act (COPA) requires age verification for adult websites. Commercial websites must implement age verification based on: 1) credit cards; 2) verified passwords; or 3) “other means” that are reasonably feasible under the current technology.[9]While the courts have preliminarily enjoined COPA,[10] the case has still not been decided, and the law could still be upheld by the U.S. Supreme Court. The results of the pending Supreme Court nomination process may bear heavily on the outcome of this particular case when it reaches the high court for the third time. Until then, webmasters cannot be assured that they are out of the woods with regard to COPA compliance. Moreover, the government has never promised that it will not retroactively enforce the act against those webmasters who failed to comply while it was enjoined, assuming that the law is ultimately upheld.
In sum, both state and federal law pose potential age verification concerns for adult webmasters. Moreover, as noted above, pending legislation may soon be adopted to require use of certain forms of approved age verification by adult webmasters. To say that the law does not require age verification for adult websites is simply wrong.
Conclusion
As is evident, online age verification is about to become a reality—whether through the adoption of voluntary guidelines or government mandate. Various online age-check options are currently available, ranging from database verification to voluntary affirmation of age under the penalties of perjury.[11]Some combination of systems may be required, depending on the nature of the content involved, the structure of the website, and the level of compliance desired. For example, softcore free tours may require a device that is less intrusive and time consuming than a free hardcore website. Unless and until government-mandated age verification becomes a reality, compliance will be guided by the webmasters’ good faith. This good faith can pay off in the end, since functioning age verification eliminates a powerful argument for government regulation—protection of children. This theme recurs whenever the government pursues legal action against adult-oriented websites. Often, the issue of access by minors has nothing to do with the charge involved, such as in obscenity prosecutions. However, those cases are much harder to defend when the prosecution can argue that the webmaster is providing obscene materials to children. By taking away that argument, the webmaster forces the government into a pure free speech battle over censorship of erotic materials. In that way, the webmaster has dramatically increased his or her chances of success in defending just about any legal claim. In the end, the industry may do well by doing good.
Lawrence G. Walters, Esq., is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide and has been involved in much of the significant Free Speech litigation before the U.S. Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at [email protected], www.FirstAmendment.com or AOL Screen Name: Webattorney.
[1] Internet Safety & Child Protection Act of 2005, S. 1507.
[2] Id. at §103(2).
[3] Id.at § 102.
[4] See: ESRB.org
[5] The effort organized into a group known as the Parents Music Resource Center.
[6] The Porn Standard, www.thirdway.com (2005). This research has recently been discredited by some sources, but continues to be cited by opponents of the adult industry.
[7] The author does not advocate for, or against, the merits of this burden being imposed on adult webmasters. This is merely an observation based on the author’s knowledge and experience.
[8] See: Reno vs. ACLU, supra, American Book Sellers Foundation for Free Expression vs. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. vs. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications Inc. vs. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU vs. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association vs. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology vs. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Association vs. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).
[9]Child Online Protection Act, 47 U.S.C. § 231.
[10][10]American Civil Liberties Union vs. Reno, 217 F.3d 162, 169-170 (3rd Cir. 2000) certiorari granted by, Ashcroft vs. American Civil Liberties Union, 532 U.S. 1037, 121 S.Ct. 1997, 149 L.Ed.2d 1001 (2001), vacated by, Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), remanded to, American Civil Liberties Union vs. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), cert. granted by, Ashcroft vs. American Civil Liberties Union, 540 U.S. 944, 124 S.Ct. 399, 157 L.Ed.2d 274 (2003), aff’d and remanded by, Ashcroft vs. American Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (June 29, 2004).
[11] See: www.idology.com; www.electracash.com; www.aristotle.com; www.birthdateverifier.com.
