The War on Porn Regular Updates about the Assault on The Adult Industry
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Utah, having discovered the same thing noticed by literally every other jurisdiction to impose an age gate on sexually explicit content, recently ‘updated’ its age-verification mandate to penalize website operators who “facilitate or encourage” the use of a virtual private network (VPN), proxy server, or “other means to circumvent age verification requirements.”
The amended law also holds that “an individual is considered to be accessing the website from this state if the individual is actually located in the state, regardless of whether the individual is using a virtual private network, proxy server, or other means to disguise or misrepresent the individual’s geographic location to make it appear that the individual is accessing a website from a location outside this state.”
The changes to Utah’s law don’t amount to a “ban” on VPN use in the state, but the provisions related to preventing covered entities from facilitating or encouraging VPN use have a clear chilling effect – and present a legal pitfall that goes beyond simply requiring adult websites to verify a user’s age.
“By holding companies liable for verifying the age of anyone physically in Utah, even those using a VPN, the law creates a massive ‘liability trap,’” noted Rindala Alajaji, Associate Director of State Affairs for the Electronic Frontier Foundation. “Just like we argued in the case of the Wisconsin bill, if a website cannot reliably detect a VPN user’s true location and the law requires it to do so for all users in a particular state, then the legal risk could push the site to either ban all known VPN IPs, or to mandate age verification for every visitor globally. This would subject millions of users to invasive identity checks or blocks to their VPN use, regardless of where they actually live.”
And while the Utah law doesn’t go as far as one version of the Wisconsin bill would have (a bill that has been vetoed by Gov. Tony Evers), as Alajaji observed, “muzzling the websites themselves from sharing information about VPNs… raises significant First Amendment concerns, as it prevents platforms from providing basic, truthful information about a lawful privacy tool to their users.”
So, while the law doesn’t outright ban the use of a VPN or other means of circumventing an age gate or geofence, this silver lining only goes so far in blunting the law’s chilling effect on speech.
“Under a ‘don’t ask, don’t tell’ style of enforcement, websites likely only have an obligation to ask for proof of age if they actually learn that a user is physically in Utah and using a VPN,” Alajaji wrote. “If a site doesn’t know a user is in Utah, their broader obligation to police VPNs remains murky. So, while SB 73 isn’t as extreme as the discarded Wisconsin proposal, it remains a dangerous precedent.”
And, of course, it wouldn’t be a discussion of an age-verification law if someone didn’t point out the (obvious) privacy implications underlying it all. As one resident of the state put it in a recently published letter to the Salt Lake Tribune, “SB73 pushes adults toward handing over identifying information just to access legal online material. That creates real privacy risks.”
“Once identification systems are built, the information can be stored, breached, misused or demanded for other purposes later,” the letter’s author added. “Utah lawmakers may call this child protection, but it looks a lot more like another government-approved tracking system.”
Twisting the rhetorical knife a bit further, the letter adds that “Utah has a bad habit of passing laws that sound moral in a committee hearing but become a technical and constitutional mess in the real world” and “SB73 fits that pattern.”
“Protecting children matters. But turning every adult internet user into a walking ID check is not protection,” the letter concludes. “It is surveillance with a family-values bumper sticker.”
Couldn’t have said it better myself.
