The War on Porn Regular Updates about the Assault on The Adult Industry
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In the earliest days of my internet browsing, my primary complaint was the speed of my connection. By the time larger images loaded, half the time I’d forgotten what it was I was downloading before the file transfer completed.
As connection speeds improved, the bane of my online existence changed from being the web’s generally sluggish performance to its increasingly pervasive, intrusive advertising. Pop-up consoles, pop-under consoles, full-page “interstitials” between pages of content, functions that would trigger when you moused-over a banner – the list seemed to grow by the day in the late 90s.
In my view, among the most irritating of these functions, one that has never left us, is the autoplay video. It’s particularly annoying when a page has multiple videos that start automatically, leading to overlapping narration/dialogue – and causing me to close out the window faster than a guy whose wife is about to catch him watching some seriously warped porn.
As part of a suite of “online safety” bills passed by the state, California recently passed AB 1709, which (among other things) prohibits platforms subject to the law from “providing an addictive feature, as defined, to a user who is under 16 years of age” and requires platforms to “implement reasonable measures to ensure that users under 16 years of age are not offered or provided any addictive feature on the covered platform.”
You might think that adult sites, restricted from use by minors by law, might be exempt from this requirement, because our platforms aren’t designed to provide anything at all to users under 18 years of age, let alone 16 years of age – but legal experts and adult industry attorneys say that’s not the case.
The new law’s definition of “addictive feature” is quite broad in some ways – and oddly specific in others. An addictive feature means “any of the following psychologically exploitative features intended to maximize engagement that foreseeably lead to compulsive use: (1) An addictive feed (2) Autoplay (3) Any other feature defined in regulations adopted pursuant to Section 22685 as an addictive feature.”
In other words, it appears that “addictive features” are going to include whatever the “e-Safety Advisory Commission” created by the new law envisions. Except it’s not even that clear, because the law stipulates that the commission is “purely advisory. The commission’s advice and recommendations are not binding upon, and shall not be imputed to, any agency or department of the state.”
In other words, all we really know about what the new law prohibits is autoplay and an “addictive feed.” The legislature did at least feel up to the task of defining what an “addictive feed” is – although it’s not exactly riveting reading and probably only truly comprehensible to your attorney. Here’s what the legislature came up with:
Addictive feed means an internet website, online service, online application, or mobile application, or a portion thereof, in which multiple pieces of media generated or shared by users are, either concurrently or sequentially, recommended, selected, or prioritized for display to a user based, in whole or in part, on information provided by the user, or otherwise associated with the user or the user’s device.
The law then goes on to state a series of potential exemptions, including that the information presented in the feed is “not persistently associated with the user or user’s device and does not concern the user’s previous interactions with media generated or shared by others.”
It sure seems to me that what’s really being outlawed here, whether it’s “addictive” or not, is the “suggestion engine” aspect of algorithmic social media feeds. Apparently, the answer to teen social media addiction is for platforms to provide a purely chronological feed that isn’t tailored to your interests, unless you specifically and individually declare certain creators/influencers/brands to be of interest to you.
Again, just because adult websites aren’t intended for users as young as those at issue in AB 1709, that doesn’t mean such sites are exempt from the new law. As adult industry attorney Corey Silverstein has noted, the “consequential provision is Section 22684: before providing an addictive feature to a user, a covered platform must determine that user’s age.”
“That runs to every user, not only to users you suspect are minors, so the practical question is whether you can serve a personalized feed at all without an age-assurance layer,” Silverstein added. “Penalties reach $50,000 per affected minor for a knowing violation and $25,000 for a negligent one, with no cure period and no safe harbor.”
Speaking of things that are irritating (although certainly not addictive), the California legislature has demonstrated a point that has long been true: Even when a new law doesn’t appear to be aimed at the adult industry, the statute can still land like a regulatory turd in your design and marketing punchbowl.
