Today, Explained - Childproofing Pornhub

Episode Date: June 20, 2023

States want to restrict kids’ access to harmful content online via age verification systems. New York Times reporter Natasha Singer explains how a wave of new legislation could dramatically reshape the internet. This episode was produced by Amanda Lewellyn, edited by Amina Al-Sadi, fact-checked by Laura Bullard, engineered by Patrick Boyd with help from Michael Raphael, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

If you're a youngster in America who wants to see a rated R movie, you're probably going to get carded. If you want to buy an adult magazine, if you can find an adult magazine somewhere anymore, you're likely going to get carded. You are definitely going to get carded at the strip club. But for decades now, individuals of any age have been able to watch all the online porn they can get away with, which is totally twisted. And now there are a bunch of laws being passed to change that. The pornography that is on the internet today is not your daddy's playboy. I even joke it's not the hustler that people probably hid underneath their bed.

This is really hardcore pornography, and it's just freely accessible to children. And so we know it's harming them. And now, as a legislature, I can do something about it, and I did. Getting carded for online porn. Coming up on Today Explained. The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves? Check out our new player prop tracking with real-time notifications.

Or how about more ways to customize your casino page with our new favorite and recently played games tabs? And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. So my name is Lori Schlegel, and you can call me Lori, or you can call me Rep Schlegel. I am a licensed professional counselor, and we treat people who are struggling with pornography.

So it's obviously something I do on a daily basis. I have been a state representative for two years. And last year is when I actually filed the bill and I wasn't having any intention of doing anything like this out of the gate. But a whole bunch of things just sort of came together all at once to sort of make it possible. And what kind of tipped me over the edge was when I read an article of Billie Eilish and she had done an interview with Howard Stern and she sort of disclosed to him how she'd been watching pornography since the age of 11. I think it really destroyed my brain and I feel incredibly devastated that I was exposed to so much porn. I think that I had like sleep paralysis and these like almost like night terror slash just nightmares because of it. And I just thought how courageous that was of someone of her stature and a female to obviously

be having this conversation with Howard Stern. And I just thought that this is just a real problem. It's really harming our children and we have to do something about it. You're listening to Today Explained. I'm Sean Ramos from Representative Schlegel, and like-minded lawmakers are trying to protect kids from harmful content online. There's been six state laws passed so far this year to that end. Natasha Singer at the New York Times has been writing about them. So we're sort of seeing a growth of different kinds of laws. The porn ones require you to verify your age in order for you to view porn sites like Pornhub. The first one was passed by Louisiana. The law, known as Act 440, went into effect on January 1st and aims to shield minors from harmful material. Then last year, California passed a different kind of law. It's called the

Children's Age Appropriate Design Code. The bill would require app makers to create default protections for children. So, for instance, on a social media app, the ability for strangers to contact you would be turned off. And then the third kind of law we're seeing are the social media age restriction bills. We saw Utah pass one in March, and then Arkansas passed one in April. And those not only require social media sites to check somebody's age and make sure they're an adult, they require parental consent for young people to have a social media account. But they go even further, which is... Under the law, companies must give parents access to their children's accounts. There's a social media curfew from 10.30 p.m. to 6.30 a.m., and there must be an age verification system for all

Utah residents who use social media. So we're seeing really this wave of restrictions starting with porn growing to a much bigger set of platforms. And as far as I know, internet porn has been around for a minute now. Where is all this coming from? You know, I think that legislators, both state and federal, and parents and schools and everyone else right now are concerned about young people online. Many of the algorithms on social media and more broadly, you know, on the web will direct kids often toward content that may not be helpful, in fact, may actively be harmful to their mental health and well-being. And I think the concern about porn is a subset of the general malaise and feeling that the internet

either causes mental health issues or exacerbates mental health issues in adolescents. As leaders and as parents, we have a responsibility to protect our young people. Also, if you're a state legislator and you're trying to crack down on big tech, it's much easier to start with something that everybody seems to be able to agree on, like porn is bad for young people. And then you can graduate to, oh, we have a paradigm. We have age verification for porn we can also have age verification for social media because that can also pose risks right it's a slippery

slope there's a lot here to unpack but let's just begin with enforcement because one of the things you mentioned was that you know kids are gonna have to punch in their age before using certain social media apps, maybe certain porn sites, whatever it might be. But obviously, it's really easy to lie. Whenever something asks me for my zip code, I don't want to be tracked, so I just put in 90210. Right. And I lie when they ask me what my age is most of the time because I'm a privacy reporter and I don't want companies to know it's none of their business, right? So, but the thing is that these laws require much more than what companies do now, which is ask you

to volunteer your age. Because we know there are millions of kids on social media sites who've put in fake birthdays, who have been 12 and made themselves 21. McLovin? What kind of a stupid name is that, Fogel? What, are you trying to be an Irish R&B singer? What these things require, for example, with the porn, is that you have to use a third-party ID like your driver's license. Aha.

They don't let you just say whatever age you want to be. So we have a thing called LA Wallet. It is our digitalized ID. And it was created, you know, years ago. But during the pandemic, our court systems utilized it to help identify people who were coming and doing online court. And so I went to research to see, is the technology available where you can just give somebody's course age, not give any kind of identifying information, but just telling like this person's over 18, sort of let them in. And I found out, yes, the technology is available where you can protect someone's privacy and

also, you know, protect children at the same time. I think that Louisiana is unique, and that's because Louisiana already had a digital driver's license system in place and an app where you could upload your driver's license and get a certified digital copy. And I think about a third of people, drivers in Louisiana, were using this app

before the porn law was passed. So unlike other states that have passed this law that do not have such an app in place, you know, when Louisiana passed this law, they knew they had a system that porn sites would be able to use to verify. And the way the verification works is you go to the site and you are given a code to plug into your app. And the app will verify that it's you and that you are over 18 or not. And then the app sends a message to the porn site saying, this user is over 18 or under 18. It doesn't show your driver's license to the porn site.

It doesn't tell them your name, your birthday, anything else. And so you have seen tens of thousands of people in Louisiana start using this app since the law went into place. So some people may be using a VPN, but it seems like a lot of people are also complying. On the other hand, Pornhub and the sites owned by that company are complying, but many other porn sites are not complying. So it creates a system where the sites that are complying feel like they're being punished because many sites are not complying. So it creates a system where the sites that are complying feel like they're being punished because many sites are not complying with the law. Mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply.

As we've seen in other states, this just drives traffic to sites with far fewer safety measures in place. How are the sites that are not complying getting away with it? Well, they were getting away with it because there were no specific penalties for not complying. However, in early June, the Louisiana state legislature passed a new law that spells out specific monetary penalties for porn companies that do not comply with the age verification. And so there will be punishments for companies that don't comply. What kind of punishments? Are we talking fines? Yeah, I think the fine is $5,000 a day. And then there's another potential $10,000

per day for violation penalty if you knowingly don't comply. So we've been focusing a lot on the porn laws. Tell me a little bit about how enforcement works on the social media side. The social media laws have not yet come into effect, and the states are studying how to create systems that companies can comply with. And I think companies will have options. But if you must verify the age of your users, and you are an Instagram or a TikTok, it means that everybody, not just a parent or a kid, will have to prove how old they are and not by just volunteering their age. And then there's a next issue, which is once you verify that somebody is a child, how are you going to verify that somebody who says that they are the parent are the parent? Because if you're my kid or not my kid, I can create an email address with somebody with the same last name as you and say I'm your kid. Or you could get your going to verify an adult, you ask them to put like a 10 cent charge on their credit card.

Well, a lot of teens can sneak into their parents wallet and charge 10 cents. And who's going to notice? Like, I think one of the questions is with these new bills, what mechanisms are there in place to verify that a person who says they are the parent and are going to give permission is actually the parent? I think that's the technical problem. Okay, so it sounds like states like Louisiana and presumably the rest of them who are implementing these laws around age restrictions are sort of working it out as they go. How are the porn companies that are complying and maybe the ones that aren't, as well as these social media platforms, responding? I imagine they're not in love with these laws. Social media companies are expected to challenge these measures in court. Tech industry lobbyists say the move is unconstitutional. So, of course, it's complicated. And one of the things that the porn sites say is that imagine

that a dozen, two dozen, all 50 states pass these laws, and they each have their own apps that you have to use to comply with. And it's a big free-for-all, all with different rules, all with different systems. They would like it to be uniform. And on a content level, there is an argument that porn is the kind of material that people are allowed to see, and creating barriers to see it interferes with the First Amendment right of free speech because free speech doesn't just mean you and I get to say whatever we want to say out loud. It means that we have a constitutional right to access constitutionally protected material,

whether that is some erotic novel by Anais Nin or Pornhub. Between the porn laws and the social media laws, it sounds really messy because if 50 states are going to come up with 50 different rules and 50 different requirements, it's going to drive everyone nuts. Is this just what the United States looks like in the absence of federal requirements and federal regulation? I think that's a really good point. And it does feel like a bit of a free-for-all. But we often see when enough states do something and create a free-for-all, then Congress finally acts to try to bring some uniformity to the system. So it also creates pressure on Congress to try to create uniformity both for consumers and for the industry.

I do think the Supreme Court really needs to take a look at this issue, and I also think the federal government needs to act. But if they're not going to act, then the states are, because it's our responsibility. The government does have a compelling interest to protect children, and so I'm going to at least try to protect Louisiana children. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great Thank you. unlimited photos and videos directly from your phone to the frame. When you give an AuraFrame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an AuraFrame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday.

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BetMGM operates pursuant to an operating agreement with iGaming Ontario. Today Explained, we are back with Natasha Singer from the New York Times. Natasha, when we left off, you said that in the absence of federal regulation, there's going to be all these states trying to pass their laws to protect kids. And then maybe Congress might do something because they'll have 50 different laws regulating this problem in 50 different ways. Has Congress ever tried to get up in tech's business like this before? Yes, and this is where the history is completely fascinating. In February of 1996, Congress passed and the president signed the Communications Decency Act, which made it a crime to transmit indecent material to minors online.

And you have to remember that in the mid-1990s, the Internet was in its infancy. We didn't have Internet filters that parents could really use to block certain sites. We didn't really have age verification apps. And it was not clear when Congress passed this law saying it would be illegal to show young people indecent material. It wasn't clear what indecency meant. Was indecency an AIDS education website that showed people how to properly put on a condom? Squeeze the tip and unroll it all the way down before you start. Was indecency, again, literary smut like Henry Miller? Okay, what about this? Where is the chair you sit in?

Where is your favorite comb, your toothbrush, your nail file? Trot them out that I may devour them at one gulp. You want to eat his toothbrush? No, I'm trying to convey that I miss him very much. The ACLU then decided to sue to stop this law. And there was a famous lawsuit called Reno v. ACLU because Janet Reno was President Clinton's attorney general at the time. It's Reno time.

Okay, who wants a piece of Reno? And the question was, would sites self-censor to avoid a lawsuit or, you know, being cracked down on by the government? And would we have a Disney-fied internet before it even got off the ground? And again, there's this First Amendment argument that the Constitution protects the right to freely access information. And the Supreme Court sided with the ACLU and struck down the law.

While we do not question in the slightest the legitimacy and importance down the law. While we do not question in the slightest the legitimacy and importance of the interest in protecting miners from harmful materials of this kind, after a rather elaborate study of this extensive piece of legislation, we have concluded that both of the challenge provisions are unconstitutional. And it's fascinating because the judges said,

A, that it was unconstitutional and could chill free speech, but they also said it was unenforceable because the technology didn't work back then. We are unanimous on the judgment, although Justice O'Connor has filed an opinion in which he, joined by the Chief Justice, which concurs in the judgment in part, but dissents with respect to one aspect of the statute.

For me, one of the really interesting things about this case was Justice Sandra Day O'Connor filed her own opinion in part agreeing and in part dissenting. She agreed that it was unconstitutional at the moment, but she also started talking about what she called adult zones, adult zones in the real world. That in the real world, we had physical adult zones like casinos and bars where children were not allowed to go, where you had to present an ID showing who you were and your birthday

and that you were over 18. And we didn't think that those were unconstitutional. We do not think it's unconstitutional to keep a 15-year-old or a 5-year-old out of a strip bar. So she was saying when the internet could have technology to have those similar factors, when there could be age verification technology that was easy and not burdensome, it was possible we could have these adult zones on the internet. And the thing I find fascinating about that now is that is the argument that some Republican lawmakers are making today. And so I spoke to Lori Schlegel, who is the Republican legislator in Louisiana

who shepherded the porn age verification law and is shepherding other laws. And she said this comment to me that sounded exactly like Sandra Day O'Connor, which was, you can't be 10 years old and just walk into a strip club. You know, there's going to be a bouncer that cards you. You know, you can't do that. But yet we just allow freely pornography websites to do that. There are already two lawsuits. I think there will be more against these state laws. One is likely to end up in the Supreme Court, and it's going to be very interesting to see whether the justices are going to reinforce the existing precedent of not putting undue burdens on adults to access material in the name of protecting children, or whether we're at a point where the whole country feels we have a mental health crisis

that is related or exacerbated by the Internet. And the justices feel like they have to intervene and create adult-only zones. This is a dramatically different Supreme Court and a dramatically different Internet. But you're talking about this same idea that just took what seems like an almost 30-year hiatus. I mean, what happened between Sandra Day O'Connor writing about adult zones in the 90s and now, other than, you know, the internet got dramatically faster and porn is now everywhere. You stumble upon it accidentally when searching for something benign on Twitter. What happened between those intervening decades? Did people stop asking this question about how to keep kids safe online? I think a few things happened.

One is all these new inventions and conveniences happened. Facebook didn't exist when the Supreme Court made this decision or TikTok or Instagram or Reddit or Tumblr. And all these really cool things happened that connected us. We felt very enthusiastic about them. The Obama administration felt really enthusiastic about them and chose not to regulate big tech because they didn't want to kill the golden goose that was helping to pump up the economy.

And we were the innovation leaders of the planet. We cannot cede to other nations the technology that will power new jobs and new industries. We must claim its promise. That's how we will maintain our economic vitality and our national treasure. And I think slowly over time, we have seen more and more internet harms.

Parents are noticing a disturbing trend on social media. Online predators targeting children through imposter Instagram accounts. Researchers at the nonprofit Center for Countering Digital Hate found TikTok's algorithms can begin recommending content about eating disorders and self-harm to kids as young as 13 years old within the first 30 minutes of signing up. Following the death of 14-year-old Molly Russell, who took her own life, her family believe Instagram was partly responsible for her death.

I think we've come to a tipping point where we now believe as a society that this is deeply problematic and there have to be some rules. Do you think on some level reporting on this, do you ever get the impression that this is just a Sisyphean task to try and regulate the internet? Or do you think there is some future in which we can do this right?

I have been covering privacy and separately children online for, I guess, almost a decade now. And it started with, I was writing about how children were being tracked and everybody was like, oh, you're a chicken little, the sky is falling, right? And now I don't have to explain why it's a problem. So I think that is interesting that things that we didn't worry about, we now get why it's a problem. But also even 10 years ago, people were like, oh, the horse has left the barn. We can't regulate privacy. Everybody's data is already out there. And you see that actually in the last few years, states have acted to restrict facial recognition, the use of facial recognition by the police. There have been lawsuits in Illinois where there's a biometric privacy law against companies that have used people's facial data. And so you can see that in some subsets of technology cases,

regulation and scrutiny is working. Both Republicans and Democrats want to take action. And it's happening in the states also because states, some states have really short legislative sessions and they can get a bill passed really, really quickly, which is why you've seen all this momentum. And I think that once you have half a dozen states do something, it really is a watershed moment. Natasha Singer writes about technology at the New York Times. Today's episode was produced by Amanda Llewellyn and edited by Amina Alsadi.

We were fact-checked by Laura Bullard and mixed by Patrick Boyd with help from Michael Raphael. It's Today Explained. Thank you.