The internet can feel like the wild west, a place where people of all ages, including children, are just a few clicks away from encountering explicit content. Given this digital landscape, it is understandable that parents want to shield their kids from materials intended for adults.
But House Bill 1257, a bill aimed at limiting minors’ access to online content, would ultimately violate the constitutional rights of adult South Dakotans.
This bill stipulates that any website that displays “material harmful to minors,” is required to use an age verification method to guarantee only adults are accessing the website. If the website fails to do so, the parents of a child harmed by the website’s content can sue for damages. A Senate committee killed the bill, but backers of the legislation are trying to convince enough senators to revive it during the final days of the 2024 Legislative Session.
Minors can still access adult content
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 extremely simple to use a Virtual Private Network (VPN) to make it appear as though a user is located elsewhere, thereby evading age checks. In fact, a recent study of middle schoolers ages 11 to 14 found that 41 percent of them use a VPN to browse the internet. Kids can easily circumvent the proposed age verification requirements.
An unconstitutional law
This legislation would undoubtedly have a chilling effect on free expression online. The legitimate fear of having personal information exposed may deter adults from accessing legal and consensual adult content, thereby limiting their freedom to explore and express themselves in a private digital space.
The Supreme Court has ruled that states can restrict a minor's access to adult material, but legislators must navigate a delicate balance mandated by the U.S. Constitution. The law cannot inhibit a minor's access while simultaneously burdening an adult's right to access the same material.
In a precedent-setting case, Reno v. ACLU, the courts deemed age verification requirements were unconstitutional when a less restrictive alternative exists. For example, the voluntary installation of parental control filters.
Privacy concerns
House Bill 1257 would require that Internet users share personal data, such as a photo ID, with companies that claim to verify the user’s age. This will block some people – for example, those that lack government IDs or whose age is mis-identified by this technology – from accessing these sites.
South Dakotans can’t be confident that these businesses have the capacity or processes to verify user’s ages while keeping this information private. The bill requires companies to delete users’ personal information immediately, but without proper protections, the risk of a data breach or hacking is still substantial. Many websites containing adult content are hosted overseas, making it more challenging for the state to enforce the prohibition of data collection and lengthening the amount of time where private user data would be vulnerable to exposure.
In addition to the risks inherent in transmitting this data for age verification, the introduction of this kind of scheme creates a massive opportunity for criminals. Personal information regarding sex and sexuality is highly sensitive, and criminals are adept at exploiting this. In fact, one common extortion tactic reported by the FTC employs a threat to disclose a person’s adult website browsing behavior.
And this isn’t just a hypothetical. Health insurers, massive retail corporations and government agencies have all faced data breaches.
Unintended consequences
Similar legislation in other states—Utah, Montana, Texas, Louisiana, Arkansas, Mississippi, North Carolina and Virginia— has drawn criticism for its unintended (or in some cases, intended) consequences.
In Utah, a similar bill caused PornHub – which receives 130 million total visitors per day – to block access to its site in the state, denying law-abiding adults access to constitutionally protected material. A statement from the company warned that the new age verification law could result in users seeking out sites with “far fewer safety measures.”
In some cases, companies may decide the financial burden of implementing the requirements outlined in House Bill 1257 is not worth continuing to operate in South Dakota. The costs of designing this age verification technology can easily surpass $100,000, plus the cost of potential lawsuits from parents and the Attorney General.
Parental controls and device-level are great tools currently available for parents and schools who are willing to use them. Many families already use these tools to keep their children safe from content that is unsuitable for them, even when utilizing a VPN. These options not only empower parents and caregivers by placing control where it belongs but are also readily accessible and endorsed by the Supreme Court.
If South Dakota lawmakers proceed with this legislation, it will surely be held up in the courts as we have seen in other states. The Fifth Circuit issued a temporary injunction against Texas’ similar law before it even went into effect. Lawmakers should not jeopardize the First Amendment rights of South Dakotans in an effort to censor the Internet.
In the history of the Internet, we’ve never been required to present an official ID to merely visit a website. We can make the internet safer using the tools already at our disposal as parents without sacrificing the privacy and constitutional rights of all South Dakotans.
This article originally appeared in The Dakota Scout.
