COLUMBIA – Several adult entertainment websites have begun restricting access for users in South Carolina after an age verification law officially went into effect.

The law, sponsored by state Rep. Travis Moore (R-Spartanburg), took effect Jan. 1. The Children’s Online Safety Act 2024 was intended to restrict minors’ access to online pornographic content by requiring adult entertainment providers to use “commercially appropriate” content. Methods of using public or private transaction data to verify users’ age.

“I don’t think it’s controversial that the law itself reduces the number of minors who have access to this content,” Moore said in an interview. “I think any reduction is in the right direction.”

The bill is a near-identical copy of Louisiana Act 440, a bill introduced in 2022 by Christian family counselor and conservative state Rep. Laurie Schlegel that has since served as the template for 17 similar state anti-obscenity laws passed mostly in the South.

Age verification methods include everything from so-called “digitized ID cards” to independent, third-party age verification services used by companies or government agencies to verify that users are over 18 years old. Any website that does not verify the age of users who ended up accessing adult content could be held criminally liable under the SC Act and sued for damages.

The bill was easily passed by the legislature. In the House, only Rep. Justin Bamberg, D-Bamberg, voted against the bill 113-1, while the bill passed unanimously in the Senate. But it wasn’t without concerns.

During testimony on the bill last winter, several online advocacy groups warned lawmakers that such age verification policies could raise significant privacy concerns for South Carolina consumers and potentially violate federal protections for anonymous speech online. Others, including state Senate staff, suggested the legislation might fail constitutional scrutiny under the First Amendment to the U.S. Constitution. Ultimately, lawmakers decided it didn’t matter.

“Sometimes you have to take a political position,” Sen. Sean Bennett, R-Summerville, said at the time. “One that says our children matter, that our people matter.”

Exodus of porn sites from South Carolina

The ultimate result of this policy decision was a mass exodus of major pornographic websites from South Carolina. While some sites, such as Hammy Media Ltd.’s Cypress-based xHamster, have begun collecting personal information from South Carolina users in order to access the site, others – such as sites owned by adult entertainment group Aylo – have begun collecting the Restrict access to South Carolina. based IP addresses completely and cited their concerns about the responsibility of managing reams of sensitive user data.

Aylo representatives said in a statement that while they do not oppose age verification, the responsibility should not lie with individual websites, but with the age-restriction software on the actual devices used to access adult content.

“Unfortunately, the way many jurisdictions around the world have implemented age verification is ineffective, arbitrary and dangerous,” Aylo representatives said in a statement to The Post and Courier. “Any regulations that require hundreds of thousands of adult websites to collect significant amounts of highly sensitive personal data jeopardize user safety. Additionally, experience shows that if they are not properly enforced, users will simply access non-compliant websites or find other methods to evade these laws.”

Some believe this is already happening.

Bamberg told The Post and Courier that he believes South Carolina’s law is unenforceable and potentially harmful to adult entertainment sites that actually attempt to moderate their content.

Aylo-owned website Pornhub made major reforms to its rules after it was accused in 2020 of hosting illegal content on its site. The company says its traffic in Louisiana fell by about 80 percent after that state’s law was implemented. But not because people stopped looking for porn, they argued. Instead, users have simply migrated to darker corners of the internet, where users are not asked to verify their age, they do not abide by laws, and they do not moderate the content they post on their sites.

Although Louisiana introduced a digital ID card called LA Wallet, which was ultimately used on Aylo-owned websites, the company said it did little to stem traffic churn. The traffic, they suspected, then went to more unscrupulous websites.

“In practice, the laws have only made the Internet more dangerous for adults and children,” it said in a statement.

In the days since the law went into effect, that appears to be true in South Carolina. Other popular adult entertainment websites reviewed by The Post and Courier on Jan. 2 appear to have no form of content moderation at all, while the state’s ability to prosecute cybercrimes is already somewhat limited due to the sheer reach of cyberspace. Instead, Bamberg said, it must be up to parents to ensure that their children do not access content to which they do not have access.

“The attorney general’s office or anyone else won’t be able to do anything about it because it’s the Internet,” he said. “It is almost impossible to monitor the Internet.”

Moore acknowledged the potential for some of the negative impacts described by critics, including the possibility of users using other means such as virtual private networks to circumvent geographic blocks set by pornography companies. But he also argued that the burden on companies is relatively small and that lawmakers have already expressed interest in legislation – such as a 2023 “Default to Safety” bill proposed in both the House and Senate – that would The burden of age verification would have increased directly on mobile device manufacturers.

“It’s like any other type of law you pass for any other type of problem like this,” he said. “People will find ways around the problem. But if the overall goal is to reduce overall access, I think it will definitely have that effect.”

Courts decide whether laws are legal

The legality of South Carolina’s law is still an open question. A number of lower courts have upheld the legality of numerous states’ laws, including Louisiana’s. The U.S. Supreme Court will hear arguments on Jan. 15 as part of a legal challenge to an identical bill passed in Texas, arguing that while states “may rationally restrict the access of minors to sexual material,” they do not impose these restrictions must withstand strict scrutiny if they are found to be restricting adults’ access to constitutionally protected speech.

At the heart of the debate is not only the question of whether age verification itself is unconstitutional, but also whether sex and obscenity are inextricably linked.

Decades of precedent have already shown that this is not the case. And by imposing age verification requirements for sexual content, states like Texas are effectively trying to restrict adults’ access to constitutionally protected forms of speech, lawyers for the American Civil Liberties Union wrote in a petition to the court.

But supporters of the laws say such legislation is the safest way to ensure young children don’t have access to obscene material, at a time when doing so is arguably easier than ever.