California lawmakers are debating an ill-advised bill that would require internet users to show their ID to view sexually explicit content. EFF has sent a letter to California lawmakers encouraging them to oppose Assembly Bill 3080, which would result in the internet being censored for all users.
If you care about a free and open Internet for all and you live in California, now is a good time to reach out your member of the California Assembly and senator and tell them you oppose AB 3080.
Adults have the right to surf the Internet for free and anonymously
If passed, AB 3080 would make it illegal to show websites with a third party or more “sexually explicit content” to minors. These “explicit” websites would join a list of products or services that cannot be legally sold to minors in California, including items like firearms, ammunition, tobacco and e-cigarettes.
But these things are not the same and should not be treated the same under state or federal law. Adults have a First Amendment right to search for information online, including sexual content. One of the reasons why EFF is against mandatory age verification is because there is no way to verify identity online, only for minors without cause drastic damage the rights of adults to read, get information, speak and surf anonymously online.
As EFF explained in a recent amicus brief In this regard, collecting IDs online is fundamentally different—and more dangerous—than personal identity checks in the physical world. Online identity checks are not just a temporary display—they require adults to “upload data-rich, government-issued IDs to the website or to a third-party verifier” and create a “potentially persistent record” of their visit to the establishment.
The more information a website collects about visitors, the greater the chance that such data will end up in the hands of a criminal or other bad actor, a marketing company, or a subpoena. So-called “anonymized” data can be reaggregated, especially if it consists of data-rich government IDs along with browsing data such as IP addresses.
Data breaches are a fact of life. Once governments insist on creating these ID logs for visiting websites with sexual content, these data breaches will become more dangerous.
This bill requires identity checks for a wide range of content
The bar is low in this bill. It is far from clear which websites prosecutors will consider third party content unsuitable for minors, as that can vary widely by community and even family standards. The bill will certainly ensure that general purpose websites allow explicit content. For example, a sex education website for high school students might be considered “offensive” and of little educational value to young minors.
Social media sites, online messaging forums, and even email lists may contain some content unsuitable for younger minors, as well as a large amount of general interest content. Bills like California’s that require identity checks for any site with 33% of content that prosecutors deem explicit are akin to Netflix requiring identity checks at login regardless of whether a user is watching a G-rated movie or an R-rated movie rating you want to view.
The right of adults to view websites of their choice is enshrined in law
U.S. courts have ruled numerous times against government efforts to age limit content, including sexual content. In Reno v. ACLUthe Supreme Court has struck down almost the entire Communications Decency Act, a 1996 law intended to keep “obscene or indecent” material out of the reach of minors.
The Supreme Court reconsidered the issue in 2004 ACLU v. Ashcroftwhen it ruled that a federal law of the time, which sought to impose age verification requirements on online sexual content, was likely unconstitutional.
Other states will follow
Over the past year, several other state legislatures have passed similarly ill-advised and unconstitutional “online identity verification” laws. They are facing legal challenges that are now working their way through the courts, including an age verification law in Texas which EFF has asked the Supreme Court to look into.
Elected officials in many other states are, however has wisely refused to introduce a mandatory online ID laws, including Minnesota, Illinois and Wisconsin. Governor of Arizona in April vetoed a mandatory ID check bill that passed in her state along partisan lines, stating that the bill is “contrary to settled case law” and emphasizing that any future proposal must be bipartisan and also “operate within the bounds of the First Amendment.”
California is not only the largest state, it is also home to many of the country’s largest creative industries. It is also a leader in online privacy law. If California passes AB 3080, it will be a green light for other states to pass online identity verification laws that are even worse.
Tennessee, for example, recently passed a mandatory ID that includes misdemeanor penalties for anyone who “publishes or distributes” a website containing adult content for a third party. The Tennessee Budget Committee It is estimated that the state will incarcerate one person per year under this law, and has budgeted accordingly.
California lawmakers have an opportunity to restore some sanity to our national conversation about how to protect minors online. Mandatory identity checks and fines or prison sentences for those who do not use them are not the solution.
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