How the Palmetto State could say goodbye to pornography sites

South Carolina residents could soon lose access to adult websites. Specifically, Pornhub.

Lawmakers intentions to protect children online from pornography and social media sites could have unintended consequences, such as blocking adult access, and raising several legal issues. But with only three weeks left in the 2024 session, questions remain relating to the legislation, how it would work, and if it would be challenged.

H. 3424, a bill that would require adult websites to ensure their users are over the age of 18 with third-party verification sites, has been coupled in a Senate committee with a law requiring parental consent for anyone under 18 to be on social media. Both have passed the House.

The issue starts with the national conversation surrounding children’s safety online. In South Carolina, multiple bills have been proposed to restrict content, one even to stop AI generated images such as “deepfakes.”

Across the aisle, there is a great concern that children are exposed to a high degree of unregulated information, whether it be accidentally or intentionally. The question is where, and when, the government should step in, but also, how would these proposed rules even work?

Pornography restrictions have passed in seven states, including North Carolina and Texas, that require adult sites containing pornography or inappropriate material to use third-party identifiers to ensure the users are over 18-years of age.

However, in each of these states, sites like Pornhub cease to be allow access once the law passed. Pornhub gets more global users than Amazon or Netflix. In Utah, Mississippi and Virginia, users who visit the site are greeted with a safe-for-work video of Cherie DeVille (a porn actor), clothed, explaining the site’s decision to pull out of the state.

In other states, the website doesn’t show at all. If the bill passes, it is unclear if South Carolina could have the same outcome, but even before this occurs, lawmakers are concerned that the bill itself raises serious legal ramifications.

Legal challenges: Privacy and first amendment protection

Only one of 124 members of the House made a case against the bill Jan. 31 on the floor. Justin Bamberg, D-Bamberg, said he was absolutely not OK that a parent in South Carolina could not consent for their minor to be able to access pornographic material.

“As a parent, if my child is 17-years-old, I have the ability, if my child wants to serve this country and choose to be willing to die at 17 for freedom, I can consent to them joining the armed forces, but you mean to tell me as a parent, I can’t consent to saying, ‘hey son, rather than you run around out here trying to be promiscuous in the streets, running the risk of getting someone pregnant, running the risk of getting an STD or whatever it may be, I can’t consent under this to letting you watch porn at home.’ I have a problem with that,” Bamberg said.

Bamberg did, however, bring up a point that would later be contested in Senate committees among testimonial from legal experts and First Amendment organizations surrounding the bill.

Whether you are 16, 18, 22, 37 or 60 years old, if you want to access a pornographic site, you would have to go through the verification system. It applies to everyone.

This sparked the question; who then knows you’re using one of these sites?

“All of these verification methods, not a single one of the them is controlled by the state of South Carolina,” Bamberg said on the House floor.

Greg Gonzalez, legislative counsel for FIRE (Foundation for Individual Rights and Expression), said people often forget that in order to identify age, you have to actually identify an individual. This forces people to do away with their anonymity online. In the bill, digital ID is brought up as a solution.

“That’s certainly a difficult proposition for any company to do,” Gonzalez said. “The threat of peoples’ anonymity being leaked online is a huge concern.”

Gonzalez said there are multiple examples where people assume their data is safe and then it is leaked. Some agencies have more security than others. Gonzalez also said he had heard of concerns from those in the technology industry surrounding the fact that it is possible to get around age verification systems.

Data leaks are present in the U.S. when it comes to withholding an individual’s information. There were 2116 reported US data breaches and leaks in the first nine months of 2023, according to the Identity Theft Resource Center (ITRC).

Ken Moffit, a legal counsel who came to speak with Senate members about the pornography bill, said pornography is protected speech under the First Amendment. While there is room to restrict children from seeing it, the age verification piece poses restrictions to their First Amendment rights, he said.

“The idea is that the age verification could place a chilling effect on adults in their ability or their desire to access pornography,” Moffit said. “So in that respect, it could restricts access, or it provides a chilling effect on someone who is allowed to access this material.”

Moffit clarified that it would be a state approved app as the third-party identifier to be used, as what is written in the bill. The state would simultaneously be providing an access point to pornography, he said, but also potentially collecting data on who is using it, he added.

With First Amendment and protected speech issues, the government must have a compelling interest, which protecting children is, but the law must be the least restrictive as possible, Moffit said.

“There are a lot of states that have passed something similar to this, or have some sort of age verification process that’s similar,” Moffit said. “I wanted to make sure that the subcommittee knew that moving forward with this, it does implicate the First Amendment. It could be something that is struck down today.”

Despite the concerns, lawmakers across the board in both the House and Senate agreed the legislation was worth pushing for.

“This issue is very complex,” Sen. Sean Bennett, R-Dorchester, said Thursday in the Senate subcommittee. “People in this room recognize that my default position is typically less government interference and regulations the better, but those values, those beliefs have been challenged in the world that we live in today.”

“Sometimes, in my opinion, we pass legislation with an effort to conform with existing case law and making sure it’s constitutional. In other cases where the constitutional law is uncertain or in flux, the only way you bring certainty to it is by passing legislation that is then challenged in courts,” Tom Davis said Thursday in the full committee. “In my opinion, we ought not be deterred by the fact that it might be challenged, or certainly will be challenged. But again, I think that’s part of our role as a legislature, is to make policy decisions, and then let the federal courts do their role in applying the constitution to it.”

The pornography bill passed out of the Senate full committee and will be moving to the floor for discussion. The social media bill is still in subcommittee.