The need to differentiate adults from minors in commercial situations certainly is not new, nor is it unique to the realm of cyberspace or to the adult industry. Customers must present valid picture identification cards before buying alcohol, tobacco products, or sexually explicit materials in the brick-and-mortar world. Some mainstream cinemas require picture identification before granting young-looking patrons access to NC-17-rated movies, and casinos are hyper-vigilant about confirming the ages of gamblers. Online, wine and tobacco sellers must verify the ages of those wishing to purchase their wares.In all of these cases, requiring proof of age is accepted as a normal part of doing business. Why, then, do those in the adult entertainment cybersphere suddenly seem to be so up in arms about age verification?
It's been a "best practices" recommendation in the industry almost since the industry began to include on the homepage some sort of statement about the nature of a website's content and – at the bare minimum – a set of links that require users to affirm they are adults before they enter.
Many attorneys who represent clients in the adult Internet industry now say that a simple choice between buttons or links that read "I'm 18—let me in!" and "No thanks" is not sufficient to discourage underage access, because there's no penalty attached to lying. In the world of adult entertainment, "that kid lied about his age in order to access my website" most likely won't hold much sway in court if a webmaster is charged with pandering porn to the underage under any of a number of laws currently on the books, so adult webmasters conceivably could find themselves in a legal quagmire unless they take a reasonably cautious approach to publishing erotica. Still, few sexually explicit websites require anything even remotely resembling an iron-clad age verification process before granting access to their wares.
There are a number of reasons the industry is reluctant to adopt tougher standards, but there are no easy answers. For one thing, it's human nature to resist change, particularly for people like adult webmasters who are leery of the types of unwelcome – and sometimes, they feel, illegal – changes thrust upon them by overzealous politicians protecting some utopian ideal that could be more effectively protected in other ways. In addition, it takes certain strength of spirit and rebelliousness to work in a field that outspoken elements of society denigrate with vicious invective, and adult webmasters tend to circle the wagons and refuse to budge on principle alone when those elements begin assaulting cherished perceived freedoms.
But according to some insiders, the adult Internet isn't immune from its own utopian ideals and misperceived realities. Mavericks to the core, many adult webmasters have grown comfortable with the "traditional wisdom" of their craft, and cling firmly to notions that may not help their businesses, but in fact subtly harm their enterprises. So says Keith Webb, vice president of sales and marketing at Titan Media, one of the powerhouses in gay adult content and revenue online and offline.
Money, money, money
Titan Media has published explicit, sexual entertainment for gay men online for 10 years. Its popular flagship website, TitanMen.com, oozes sensuality, but it does so without exhibiting in the public areas anything more explicit than partial nudity.
That doesn't mean nonmembers can't see hardcore examples of the site's more salacious wares. Before they do, however, they must pass a quick-and-easy age verification "test" designed to at least put a stumbling block between the majority of underage surfers and content not meant for them. The process is a bit intrusive, but it doesn't cost the surfer anything, nor does it require any sort of financial information. It does, however, require that surfers provide their real names, their actual physical addresses of record, and the number from a driver's license, state-issued identification card or voter's registration card. It's not a lot to ask, Webb maintains, but because surfers want to keep their most private desires private (possibly out of fear they'll face censure from friends, family, and business associates if it's revealed they visit porn sites), fully 60 percent of TitanMen.com's traffic abandons the site at the AV screen.
Webb doesn't view that as a bad thing. The way he figures things, the surfers who drop out before verifying their ages either don't want the content very badly in the first place – probably indicating they wouldn't be willing to purchase a membership at the end of the hardcore tour – or they failed the AV test, meaning they weren't old enough to legally access the content. Either way, the drop in traffic means less bandwidth is wasted serving images to people who never will buy anything, and the bandwidth savings balance what the company pays consultant Aristotle International Inc. for scrubbing those who remain.
Webb's company has used Integrity (formerly VerifyME from Aristotle) for three years, and has yet to notice any decline in TitanMen.com's revenue. In fact, he says, "Every year for the past 10, we've experienced a double-digit increase" in sales. It's not a perfect solution, he admits in response to suggestions that Aristotle has sold information from some presumably discreet governmental databases to special-interest groups, but for right now, at least, it's the best that's available.
"It's the best of the worst," Webb says. "Does [privacy invasion] bother me? Yeah. I would love it if someone could figure out a way to ensure privacy, but we met with Aristotle's founder [before embarking on a professional relationship] and we felt good about him and his company." Plus, Webb notes, Aristotle's contacts within the U.S. government and the Department of Justice sometimes offer "heads-up" advice that Titan believes helps it stay one step ahead of emerging fronts in the war on porn.
One such recent tip is that the DOJ is "going to be going after obscenity busts where there's also no age verification," Webb relates. "It's another hot-button issue with the DOJ."
And it should be, he notes. "In the offline world, you don't put hardcore material in the window," he says. "You don't allow children in the back room. Why should the Internet be any different?"
The elephant in the living room
The Internet should be different, argues Chad Belville, a former Arizona prosecutor who now represents clients in the adult entertainment realm, because the potential for abuse of private data is magnified exponentially online. "If I walk into my local adult bookstore and show my ID they will let me in, but they don't keep my information and sell my contact info to their suppliers the next morning," he says, giving voice to a concern that seems to be common among surfers. "Providing name, social security number, birth date, and other personal information that could be collected and abused by identity thieves is a serious privacy concern that has to be considered when crafting any age verification system."
Although Belville admits he's "moderately pro-age verification," he says the systems he's investigated so far "just don't work" because there are too many ways for minors to circumvent them. "I want to see a system where minors don't have access to adult materials, but I don't want to see a draconian system that prevents the sale and publication of adult materials to adults or invades their privacy.
"Verifying the age of a faceless surfer at the end of an Internet connection is more complicated than checking the ID of someone standing at the door of an adult bookstore," Belville continues. "A determined underage surfer with his dead grandmother's name, age, social security number, birth date, and Visa card will have no problem gaining access to any system currently in place. The surfer has no real risk of repercussions right now, either. There is no way any prosecutor's office will indict a minor for accessing sexually explicit materials or charge him with perjury because he clicked a box swearing he is of legal age to view porn."
For those in the trenches of the adult industry, cost often is seen as a prohibitive factor. Most responsible porn purveyors agree that allowing minors to access sexually explicit content is a bad idea. After all, many adult industry players are parents, too, and they don't want their children gawking at the kinds of stuff they have on their websites.
Still, the managed AV solutions that are currently available aren't free—unless they're tied to billing solutions like those offered by ChargeMeLater or ElectraCash or are included in a legal retainer like Metro Innovations Inc.'s BirthDateVerifier. Even at pennies per test, the cost of age verification seems like a huge burden for small or free-site operators. Not that they want to seem cheap, but webmasters who derive income indirectly from hardcore content – by operating thumbnail gallery posts or using their websites as traffic generators for large affiliate programs, for example – worry that the cost of verifying every visitor to their websites would put them out of business quickly. That's especially true, they say, if the U.S. government decides to impose mandatory age verification of the sort now pending before both houses of Congress in the form of the Internet Safety and Child Protection Act of 2005. Such a law, unless it becomes a de facto worldwide standard as some U.S. Internet laws have done, would put small American adult webmasters at a distinct, economic disadvantage.
That's a concern that should carry an enormous amount of weight, according to First Amendment attorney Reed Lee, a partner in the Chicago law firm J.D. Obenberger Associates and a Free Speech Coalition board member. "One of the things the Internet made possible was humble, small speakers," says Lee, who freely admits to having a soft spot for small operators. It should escape no one's notice, he warns, that some of the forces shaping the current discussion about age verification have financial objectives in getting the adult industry to adopt their platform willy-nilly and en masse. Calling some of the off-the-shelf products "snake oil," Lee encourages the industry to "slow down. They need to talk to more people. There are various people in the [adult] industry who seem to want to move ahead without a complete discussion of all the ramifications such a move could have. That has shades of dot-xxx written all over it.
"I think we need to seriously look at these things," he continues. "Sometimes the devil is in the details."
Alternatives
Lee says he believes a better solution for keeping kids away from online porn probably would be one that is employed at the end-user level, not on the publisher's side. "The FSC is asking the question, 'What, if anything, can we do to promote appropriate filtering?'" he reveals. "[Supreme Court] Justice [Anthony] Kennedy said filtering at the destination is better than filtering at the source, because it deprives fewer people of the message. I'd add that filtering at the destination also distributes the cost to the recipients who want the filtering, which is where the cost should be."
FSC Communications Director Tom Hymes suggests another option: "Why not put the burden on the credit card companies? That wouldn't compromise IDs any more than they already are. Age verification could be embedded in billing solutions in any number of economically viable ways—but that still leaves all the free sites unprotected."
On the whole, "age verification is a question in a larger battle, and it's an incomplete question, a minefield, at that," Hymes says. "There is a cynicism on both sides of the issue that clouds the ability to come at the situation with reasonable solutions."
The FSC is not the only adult industry trade association trying to shape the debate. The Association of Sites Advocating Child Protection in November hosted an executive forum during which invited heavyweights from the content, legal, software, and billing arenas discussed the pros and cons of an industry-wide initiative to promote age verification in one form or another. While ASACP, like the FSC, hasn't yet formulated an official position about the matter, executive director Joan Irvine says the time to begin investigating options is now—not after the feds define parameters the adult industry may find odious.
"It is very obvious this is one of the many ways the government is attacking the [adult] industry," she says. "[The executive forum] was just to feel people out about it. We've been approached by several age verification companies, and it seems to be that with all the attacks on the industry that it may be something we need to address in the future. Isn't it better to start addressing it now so that people are aware of the options?"
In a nutshell, Irvine says, the meeting reached one conclusion: "We don't know" what to do about age verification, or if anything should be done at all.
Ghost or concrete?
It remains to be seen whether individuals within the industry or the industry as a whole will support some sort of restrictive server-side age verification as a means of self-preservation. Although it's possible some government entity will thrust mandated age verification upon adult publishers, Hymes doesn't think that will happen.
"I'm personally for age verification, as long as it's not imposed in any way," he says. "There's this increasing totalitarian impulse by the U.S. government to control the flow of information, but because the Net is a global medium of speech, the Congress of the United States is out of its depth in trying to regulate it."
Prominent adult industry attorney Clyde DeWitt says he thinks the global community of Web users is more savvy than it is credited with being, and eventually it will realize that bridling one group's expression online threatens the expression of all other groups, as well. "There is no question that foreign governments will cooperate with chasing down child pornography, but there is no way they all are going to align themselves with the 'Radical Religious Right's' view of adult content," he says. "Most Americans won't buy that program, and the more enlightened governments of other countries will not, either."
His view is not shared by everyone. "I think age verification is going to become a necessity, and the adult entertainment industry can either come up with good solutions or be forced into bad solutions by anti-porn politicians," says Belville. "In my opinion, mandatory age verification to view online porn is inevitable just as age verification is required to buy porn from a bricks-and-mortar adult bookstore."
Robert S. Apgood, a Seattle, Wash., attorney who specializes in statutory interpretation at the appellate level and represents clients in the adult industry, says he also sees the writing on the wall. "As it always does, the [U.S.] government – likely through the kind of bumbling fits and starts we've seen with 18 USC 2257 – will demand the development of a method whereby a reliable age verification process can be implemented," he says. "It is not only inevitable, it is necessary. And it is necessary because the regulation of goods and services serves the legitimate and compelling interests of the government – that's you and me, folks – of protecting children from access to things that could cause them harm."
According to Irvine, "If people would just use disclaimer pages without [explicit] images, that would be a huge step forward at this point. Right now, this industry is behaving like an ostrich with its head in the sand."
Kathee Brewer is editor at large for AVN Online. She can be reached at [email protected].
