Last month, age verification laws went into effect in Wyoming and South Dakota, requiring sites hosting “material that is harmful to minors” to verify visitors are over 18 years old. These would normally just be two more states joining the nearly 30 that have so far ceded ground to a years-long campaign for enforcing invasive, ineffective methods of keeping kids away from porn online.
But these two states’ laws leave out an important condition: Unlike the laws passed in other states, they don’t state that this applies only to sites with “33.3 percent” or one-third “harmful” material. That could mean Wyoming and South Dakota would require a huge number of sites to use age verification because they host any material they deem harmful to minors, not just porn sites.
Louisiana became the first state to pass an age verification law in the US in January 2023, and since then, most states have either copied or modeled their laws on Louisiana’s—including in Arizona, Missouri, and Ohio, where these laws will be enacted within the coming weeks. And most have included the “one-third” clause, which would theoretically limit the age verification burden to adult sites. But dropping that provision, as Wyoming and South Dakota have done, opens a huge swath of sites to the burden of verifying the ages of visitors in those states.
Louisiana’s law states:
“Any commercial entity that knowingly and intentionally publishes or distributes material harmful to minors on the internet from a website that contains a substantial portion of such material shall be held liable if the entity fails to perform reasonable age verification methods to verify the age of individuals attempting to access the material.”
A “substantial portion” is 33.3 percent or more material on a site that’s “harmful to minors,” the law says.
The same organizations that have lobbied for age verification laws that apply to porn sites have also spent years targeting social media platforms like Reddit and X, as well as streaming services like Netflix, for hosting adult content they deem “sexploitation.” While these sites and platforms do host adult content, age-gating the entire internet only pushes adult consumers and children alike into less-regulated, more exploitative spaces and situations, while everyone just uses VPNs to get around gates.
Samantha Cole
Adult industry advocacy group the Free Speech Coalition issued an alert about Wyoming and South Dakota’s dropping of the one-third or “substantial” requirement on Tuesday, writing that this could “create civil and criminal liability for social media platforms such as X, Reddit and Discord, retailers such as Amazon and Barnes & Noble, streaming platforms such as Netflix and Rumble,” and any other platform that simply allowed material these states consider “harmful to minors” but doesn’t age-verify. “Under these new laws, a platform with any amount of material ‘harmful to minors,’ is required to verify the age of all visitors using the site. Operators of platforms that fail to do so may be subject to civil suits or even arrest,” they wrote.
I asked Wyoming Representative Martha Lawley, the lead sponsor of the state's bill, if the omission was on purpose and why. "I did not include the '33% or 1/3 rule' in my Age Verification Bill because it creates an almost impossible burden on a victim pursuing a lawsuit for violations of the law. It is more difficult than many might understand to prove percentage of an internet site that qualifies as “pornographic or material harmful to minor'" Lawley wrote in an email. "This was a provision that the porn industry lobbied heavily to be included. In Wyoming, we resisted those efforts. The second issue I had with these types of provisions is that they created some potential U.S. Constitutional concerns. These Constitutional concerns were actually brought up by several U.S. Supreme Court justices during the oral argument in the Texas Age Verification case. So, in short the 1/3 limitation places an undue burden on victims and creates potential U.S. Constitutional concerns."
I asked South Dakota Representative and sponsor of that state's bill Bethany Soye the same question. "We intentionally used the standard of 'regular course of trade or business' instead of 1/3. The 1/3 standard leaves many questions open. How is the amount measured? Is it number of images, minutes of video, number of separate webpages, pixels, etc. During oral argument, a Justice (Alito if I remember correctly) asked the attorney what percentage of porn was on his client’s websites. The attorney couldn’t give him an answer, instead he mentioned the other things on the websites like articles on sexual health and how to be an activist against these laws," Soye told me in an email. "The 1/3 standard also calls into question the government’s compelling interest in protecting kids from porn. Are we saying that 33% is harmful to minors but a website with 30% is not? We chose regular course of business because it is focused on the purpose of the business/website, not an arbitrary number. If you look into the history of the bill, 33% was a totally random number put in the first bill passed in Louisiana. Other states have just been copying it since then. We hope that our standard becomes the norm for state laws moving forward."
Samantha Cole
A version of what could be the future of the internet in the US is already playing out in the UK. Last month, the UK enacted the Online Safety Act, which forces platforms to verify the ages of everyone who tries to access certain kinds of content deemed harmful to children. So far, this has included (but isn’t limited to) Discord, popular communities on Reddit, social media sites like Bluesky, and certain content on Spotify.
On Monday, a judge dismissed a case brought by the Wikimedia Foundation that argued the over-broadness of the new UK rules would “undermine the privacy and safety of Wikipedia’s volunteer contributors, expose the encyclopedia to manipulation and vandalism, and divert essential resources from protecting people and improving Wikipedia, one of the world’s most trusted and widely used digital public goods,” Wikimedia Foundation wrote. “For example, the Foundation would be required to verify the identity of many Wikipedia contributors, undermining the privacy that is central to keeping Wikipedia volunteers safe.”
"As we're seeing in the UK with the Online Safety Act, laws designed to protect the children from ‘harmful material’ online quickly metastasize and begin capturing nearly all users and all sites in surveillance and censorship schemes,” Mike Stabile, director of public policy at the Free Speech Coalition, told me in an email following the alert. “These laws give the government legal power to threaten platform owners into censoring or removing fairly innocuous content — healthcare information, mainstream films, memes, political speech — while decimating privacy protections for adults. Porn was only ever a Trojan horse for advancing these laws. Now, unfortunately, we're starting to see what we warned was inside all along."
Updated 8/13 2:35 p.m. EST with comment from Rep. Lawley.
Updated 8/13 3:35 p.m. EST with comment from Rep. Soye.
