INDIANAPOLIS – The American Civil Liberties Union of Indiana has warned that the state’s version of age verification legislation, sponsored nationwide by anti-porn religious conservative activists, will likely result in censorship of LGBTQ+ and other constitutionally protected content.
SB 17, authored by Republican Senator Mike Bohacek, was approved Tuesday by the Indiana state legislature.
The Internet can feel like the Wild West, a place where people of all ages, including children, are just a few clicks away from explicit content. Given this digital landscape, it’s understandable that parents want to protect their children from material intended for adults.
But SB 17, a bill aimed at limiting minors’ access to online content, would ultimately violate the constitutional rights of adult Hoosiers.
This bill requires any website that displays “material harmful to minors” to use an age verification method to ensure that only adults can access the website. If the website does not do this, the parents of a child who has been harmed by the content of the website can claim damages. And, as passed in the Indiana House, the bill would also give the attorney general the ability to sue companies that don’t comply with the law.
An unconstitutional law
This legislation will undoubtedly have a chilling effect on free expression online. The legitimate fear of personal information being exposed can prevent adults from accessing legal and consensual adult content, limiting their freedom to explore and express themselves in a private digital space.
The Supreme Court has ruled that states can restrict minors’ access to adult material, but lawmakers must strike a delicate balance mandated by the U.S. Constitution. The law cannot restrict a minor’s access while undermining an adult’s right to access the same material.
In a precedent-setting case, Reno v. ACLU, the courts ruled that age verification requirements were unconstitutional when a less restrictive alternative existed. For example, the voluntary installation of parental control filters.
Privacy concerns
If this law comes into effect, it will require Internet users to share personal information, such as photo ID, with companies that claim to verify the user’s age. This will deprive some people—for example, those who do not have government IDs or whose age is misidentified by this technology—from accessing these sites.
Hoosiers cannot trust that these companies have the capacity or processes to verify users’ ages while keeping this information private. The bill requires companies to immediately delete users’ personal data, but without proper protection, bad actors – hackers or disgruntled employees – could use someone’s personal data for exploitation.
And this is not just hypothetical. Health insurers, major retail companies and government agencies have all experienced 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 a total of 130 million visitors a 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 lead to users seeking sites with “far fewer security measures.”
In some cases, businesses may decide that the financial burden of implementing the requirements set forth in SB 17 is not worth continuing to operate in Indiana. The cost of designing this age verification technology could easily exceed $100,000, plus the cost of potential lawsuits from parents and the attorney general.
Ongoing culture wars
SB 17 uses the broadly defined term “material harmful to minors,” which could ultimately be used to target age-appropriate LGBTQ+ or sex education content. We have already witnessed a systematic attempt to censor access to LGBTQ+ literature in Indiana schools and libraries using the phrase “material harmful to minors.”
The internet could become the new battleground in some lawmakers’ efforts to root out LGBTQ+ hoosiers.
Parents can already decide what content is appropriate for their children, and tools exist to help them manage their children’s time on the Internet. These existing tools can do the work of this bill without infringing on the rights of Hoosiers.
If Indiana lawmakers move forward with this legislation, it will certainly be held up in the courts, as we have seen in other states. Lawmakers should not jeopardize the First Amendment rights of Hoosiers in an effort to censor the internet.