A Utah law requiring porn site operators to block adult content from underage users within the state imposes unconstitutional burdens on interstate commerce because the statute would require them to cut off access everywhere avoid liability, a federal judge ruled.
Utah legislators required adult content providers to use “reasonable efforts” to determine the age of viewers but made no such qualification when it came to determining if underage viewers were located within state borders, U.S. District Judge David Barlow wrote in an opinion enjoining enforcement of the location portion of the law.
“The significant local interests served by the actual-location provision can be achieved through less burdensome means,” the judge wrote in a September 24 opinion.
Aylo Group, operator of a number of “adult-entertainment platforms” including Pornhub, Youporn and Redtube, said it complied with the age-verification requirement by blocking access to free porn sites to any Internet Protocol (IP) addresses in Utah. But technologies such as virtual private networks can mask a viewer’s location and the law imposed strict liability if any of its estimated 28 million U.S. users were underage, the company argued.
Judge Barlow agreed.
“Because the law requires perfection in the absence of perfect geolocation tools, Aylo would need to verify those 28 million users — whether located in Salt Lake City, Boston, New Orleans, Anchorage or Honolulu — to ensure compliance and avoid liability,” he wrote.
Utah’s 2023 law requires adult-content sites to “perform reasonable age verification methods” to make sure viewers are 18 or older. Aylo initially blocked its sites from Utah Internet Protocol (IP) address on privacy concerns, then limited them to non-pornographic content. Paying customers can still access Aylo content by verifying their age.
Utah legislators amended the law this year to make it applicable to anyone physically located in the state, regardless of whether they use a virtual private network or other technology to mask their location.
Utah argued there were many ways to detect whether a user within the state was using a VPN, including checking the device time zone, method of payment or default language. But Aylo said it had 1.3 million users in the Mountain Time Zone alone who would potentially be blocked under the Utah law.
Aylo mounted a facial challenge, meaning it argued there was no way the law could be applied constitutionally. It said it would face liability any time an underage user anywhere accessed its content, since there was no reliable way to determine if they were in Utah. Utah argued the law only requires “reasonable efforts,” to determine age and location.
The law only uses the term “reasonable” for determining age, however.
“If the Utah Legislature intended to apply a reasonableness qualifier, then it certainly could have,” the court said.
Utah also argued the amendment didn’t make a material change to the law, which the court rejected. The law, as amended, “essentially imposes strict liability” for porn sites when it comes to determining where their viewers are located, the court said.
The judge rejected an argument the law violates the Commerce Clause by discriminating against out-of-state firms, saying it applied equally to all porn sites. But he agreed the law ran afoul of the prohibition against regulating commerce that occurs entirely outside the state.
The Tenth Circuit in ACLU v Johnson struck down a New Mexico law that made it illegal to use a computer to send sexual e-mails to a person under 18, because it “regulates conduct wholly outside the state of New Mexico.” Utah argued any such effect was secondary because Aylo could use a variety of technology to try and comply with the law. The court disagreed, again because there was no “reasonable” qualifier.
“Aylo has shown that by requiring perfection the actual-location provision would regulate a massive amount of wholly out-of-state conduct with no connection to Utah,” he concluded.
