When age-appropriate Floridians attempted to access their preferred adult website after the first of the year, they may have been surprised to discover it was blocked. Or perhaps it requested a copy of their ID, or to send a code to their phone for verification purposes.
The reason behind this is Florida House Bill 3, “Online Protections for Minors,” signed into law last year. It went into effect Jan. 1 with a legal challenge before the U.S. Supreme Court, with free speech advocates arguing it is fraught with civil liberties issues for the way it affects minors and adults alike.
There are two parts to HB3. First, it requires regulated social media platforms to prohibit minors younger than 14 years of age from entering contracts to become account holders. It allows minors who are 14 or 15 years old to become account holders, but only with parental or legal guardian consent, and there is litigation opposing it in its entirety, including this section. SCOTUS has repeatedly ruled that minors have First Amendment rights.
The law also “requires regulated commercial entities that knowingly and intentionally publish or distribute material harmful to minors on a website or application to prohibit access to such material by any person younger than 18 years of age, if their website or application contains a substantial portion of material that is harmful to minors.”
“Such commercial entities must verify, using either an anonymous or standard age verification method, that the age of a person attempting to access the material harmful to minors satisfies the law’s age requirements,” it reads. “If an anonymous age verification method is used, [it] must be conducted by a nongovernmental, independent third party organized under the laws of a state of the U.S. Any information used to verify age must be deleted once the age is verified.”
This includes virtually all existing adult sites, leading the legislation to be known colloquially as a “porn ban.”
The bill had 44 sponsors, 42 Republicans and two Democrats including Tampa Bay’s state Rep. Michele Rayner. “I really didn’t have anything to do with the age verification part of this bill. I was mostly interested in protecting kids on social media,” she says.
Regulated social media platforms, commercial entities and third parties performing age verification for commercial entities that knowingly and recklessly violate the bill’s requirements are subject to civil penalties. The Dept. of Legal Affairs may collect up to $50,000 per violation, reasonable attorney fees and court costs, and in some cases punitive damages. Account holders who are minors may also pursue up to $10,000 in damages.
The Computer & Communications Industry Association has filed a lawsuit challenging the constitutionality of HB3. CCIA, with co-plaintiff NetChoice, asked the courts for an injunction that would have blocked HB3 from taking effect on Jan. 1. It was denied.
Additionally, the Free Speech Coalition — a non-partisan trade association that works to protect the rights and freedoms of the adult industry — alongside co-plaintiffs working in the sex education, adult content, sexual wellness and legal fields, have filed a legal challenge in Florida.
“These laws create a substantial burden on adults who want to access legal sites without fear of surveillance,” said FSC Executive Director Alison Boden in a statement. “Despite the claims of the proponents, HB3 is not the same as showing an ID at a liquor store. It is invasive and carries significant risk to privacy. This law and others like it have effectively become state censorship, creating a massive chilling effect for those who speak about, or engage with, issues of sex or sexuality.”
Pornhub, one of the world’s largest adult websites, blocked access to Florida users Jan. 1. Others like X Hamster now offer age verification options while XVideos, the second largest online distributor, have seemingly enacted no new policies. CCIA notes in its complaint that it supports enhanced protections for younger users online. They state that in a nation that values the First Amendment, the preferred response is to let parents decide which speech and websites their minor children may access online, “including by utilizing the many tools digital services providers give to parents for monitoring their children’s activities on the internet.”
“This social media law infringes on the First Amendment rights of both minors and adults by creating significant barriers to accessing online information that every American, including minors, has a right to see,” CCIA Senior Vice President and Chief of Staff Stephanie Joyce said. “Protecting children online is an important goal that CCIA shares with legislators, and the far better way to ensure their protection is to give parents the information and tools they need to shield their children from unsuitable content, as digital services providers already have done for decades.”
The lawsuit centers on a part of the law that applies to any business that “knowingly and intentionally publishes or distributes material harmful to minors on a website or application, if the website or application contains a substantial portion of material harmful to minors.” It defines “substantial portion” as more than 33.3% of the total material on a website or app.
Its lawsuit raises objections about how the law would apply to minors and adults, advising it “demands that … an adult must provide a digital proof of identity to adult content websites that are doubtlessly capable of tracking specific searches and views of some of the most sensitive, personal, and private contents a human being might search for.”
“As recent high-profile data leaks have revealed, no web users are safe, and hackers are often able to exploit the slightest cracks in a website’s security — however ‘reasonable’ those security procedures and practices may be,” the lawsuit argues. “The inevitable result is that at least some portion of Florida adults will feel the act’s chill and forego accessing this constitutionally protected material.”
“By defining material harmful to minors’ to include that which lacks serious literary, artistic, political, or scientific value for minors, the Florida Legislature has painted all minors, regardless of age or maturity, with a single brush,” the lawsuit also reads. “But there is a broad range of material that has serious value for at least some 16- and 17-year-olds which might legitimately be considered ‘harmful’ to a 10-year-old — like that concerning the risk of sexually-transmitted diseases, sexual health and the enjoyment of sex (in a state where 17-year-old minors may get married with parental consent).”
Some have even warned that without specific guidelines on what might be considered “harmful to minors” that Florida legislators could add other types of websites to block, including general LGBTQ+ content. The state has passed high-profile anti-LGBTQ+ laws in recent years.
State Sen. Carlos Guillermo Smith of Orlando says he does not believe that with the way the law is currently written that there is danger of non-adult related sites needing to add age verification. He does acknowledge however that this legislature has used every opportunity to scapegoat the LGBTQ+ community.
“It is wise for my constituents to stay engaged and make their voices heard to elected officials,” he says. “Be vigilant. Know what’s happening or what’s being proposed. I do believe the concerns about First Amendment rights and privacy issues are valid ones with this age verification law and need to be addressed. There is clearly government overreach going on here.”
The senator adds that the Florida Legislature has wasted thousands of taxpayer dollars to defend laws they knew from the outset were indefensible. He says two thirds of so-called “anti-woke” laws that were recently passed are not enforceable because of court decisions.
“There are many examples of this waste,” he explains. “One that many LGBTQ+ people in Florida will certainly recognize is the ‘anti-drag’ law which is not enforceable while a decision is pending in the courts.”
SCOTUS heard an argument in a similar Texas age verification case on Jan. 15 and is expected to issue a final opinion by the beginning of July. The law in Florida will remain in effect pending that ruling.
Florida Attorney General Ashley Moody, who Gov. Ron DeSantis has appointed to the U.S. Senate to replace Secretary of State Marco Rubio, was originally tasked with defending the law. Her office did not respond to Watermark Out News’ requests for comment, but she has shared her support for the law elsewhere.
The FSC states they whole-heartedly support the goal of protecting young people from material that is age-inappropriate or harmful. They insist that the FSC has both the subject matter expertise and sincere desire to collaborate with legislators on workable solutions.
Unfortunately, the FSC states the proposals being put forward in statehouses around the country have significant practical, technical and legal problems that will undermine its effectiveness in protecting children, create serious privacy risks and infringe on Americans’ Constitutional rights. They go on to outline in detail why they believe age verification laws are ineffective.
The only way that a website can determine whether a user is located in a particular state is to use the geolocation data provided by the user’s device. It is simple to use a Virtual Private Network or VPN to make it appear as though a user is located elsewhere, thereby evading age checks, and data shows that Google searches for VPNs have skyrocketed since the law was enacted.
VPNs mask the user’s IP address and lets them engage with content they may not have been able to access while protecting their privacy. The FSC has noted that a 2023 study indicated that according to Early Adolescents’ Perspectives on Digital Privacy, a study conducted in 2023, 41% of middle schoolers ages 11-14 use a VPN to browse the internet.
Additionally, Common Sense Media — the nation’s leading nonprofit source for media recommendations and advice for families — released a report in January indicating that 58% of teens aged 13-17 have seen adult content accidentally. They found that 18% reported that it was on social media.
Free speech advocates note that this bill only applies to websites where more than one third of the content meets the definition of material harmful to minors, so it will do nothing to protect those young people.
According to the FSC, age verification software also requires a user to transmit extremely sensitive data — digitized copies of their government-issued identification, biometric scans or other forms of up data used by commercial providers — over the internet.
While the legislation bars companies from retaining this information, it does not mitigate the dangers of transmitting it in the first place. The FSC notes its collection opens users up to the risk of data breaches and creates an opportunity for bad actors to collect personal information, including details regarding a user’s sexuality. Experts say a common extortion tactic is to employ a threat to disclose a person’s adult website browsing behavior.
“If the legislature was really interested in the safety of kids, attempting to block porn sites is not the answer,” says Rev. Andy Oliver, senior pastor at Allendale United Methodist church in St. Petersburg and a parent.
“What they should be doing instead is working with public school systems to offer comprehensive sex education that includes frank conversations about sexual orientation and gender identity,” he continues. “Instead they have done what they often do, which is to offer meaningless solutions that will almost certainly be thrown out by the courts and will serve to further vilify vulnerable populations.”
Oliver argues it should be up to the parents to monitor their children’s online presence, not the state. He said he regularly checks to see what his teenagers are viewing and he limits screen time.
“No one wants children to have access to adult materials,” notes Kristen Browde, president of the Florida LGBT+ Democratic Caucus. “But that’s not where the right-wing extremists who prop up the DeSantis regime are stopping.
“They’re trying to censor not just what children see, not just adult material, but facts about our population, and facts about our lives,” she continues. “Giving Republican censors, who won’t stop here, this kind of power is an awful idea, but it’s more of the same from the Republicans. They are playing politics instead of solving Florida’s real problems.”
Many representatives from the adult industry themselves say they do not want minors on their sites. They point to the use of the “Restricted to Adults” label on their sites and platforms and other safeguards. Parental controls and device-level filters are effective tools if parents and schools are willing to use them. This technology is widely available, fully supported by industry and endorsed by SCOTUS.
FSC members have shared an eagerness to find a self-regulating solution that would encourage wider adoption by consumers. They advise that the history of these efforts has taught the industry that an effective system must use a shared standard, be consistent across platforms and states, safeguard privacy, not be vulnerable to hacking or disclosure and not overly burden consumers.
Representatives say that “no system will be perfect, but we are confident that we can make significant progress toward keeping children safe online.” For now, Floridians will just have to wait on SCOTUS to see how it plays out here in the Sunshine State.
For more information about the Free Speech Coalition, visit FreeSpeechCoalition.com.
