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Comment by jpcfl | Hacker News Reader

> the plaintiffs write that the act employs “the least effective and yet also the most restrictive means of accomplishing Texas’ stated purpose of allegedly protecting minors,” and that minors can easily use VPNs or Tor; on-device content filtering would be a better method of restricting access to porn for children, they write. “But such far more effective and far less restrictive means don’t really matter to Texas, whose true aim is not to protect minors but to squelch constitutionally protected free speech that the State disfavors.”

Wow, this is a weak case. I guess the good lawyers won't stoop to the level of arguing against keeping porn away from children.

A security guard would be more effective than a lock at deterring intruders from breaking into my house, but I still have a lock. They also imply that Texas lawmakers aren't interested in protecting children, which is absurd.

I have no sympathy for these creeps. I doubt they have any interest in keeping kids off their sites (probably the opposite), so they're just projecting and trying to deflect any responsibility.

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The government doesn't need to be able to access when I watch porn, what porn I watch, where I watch it at, and all the other BS info that is most likely being collected by the sort of methods they're implementing.

My right to privacy doesn't just get rejected cuz I wanna watch some porn.

There are more effective ways to protect children and a broken solution is a poor solution.

> The government doesn't need to be able to access when I watch porn, what porn I watch, where I watch it at, and all the other BS info that is most likely being collected by the sort of methods they're implementing.

The government does need to be involved when you're producing and distributing porn, though.

This law isn't forcing porn distributors to collect data on their customers and turn it over to the government. It's making sure distributors are verifying the age of their customers, and disclosing health risks to them, just like we do with alcohol, tobacco, and firearms.

The way the government is enforcing the distributors to verify the age is the problem. By using 3rd party data collection agencies with an economic incentive to monetize that data. Data collection agencies which the federal government (at a minimum) have admitted to purchasing from to collect data on US citizens.

There are solutions to resolve this (device-specific privacy controls a la parental controls in iOS) are probably the most secure and most effective.

Or what if they don't want to have to track adults who use their site? What if they think it's the parents responsibility to ensure their kids don't visit the site and they view what they produce as constitutionally protected speech.

No need for the government to be given a nice formatted list of all the porn each TX adult is consuming.

That information is also guaranteed to be a hacking target or be selectively leaked to prove a point by someone with a moral axe to grind

Parents do have a responsibility to ensure their children don't access harmful content, just like they have a responsibility to protect them from drugs and alcohol.

But if there's a store down the street where kids can easily get booze, then that kinda makes it impossible as a parent. In this case it's worse--that "store" is right in the kid's pocket.

Websites aren't stores.

I see your point but I can't find a great analogy - I feel it's more like a kid hanging around/texting with bad apples or something like that

I am not sure how well this will work anyway to keep suggestive content away from children, even big sites like YouTube seem to sometimes tend towards it on the regular front page from time to time

It's not a perfect analogy, but it goes to show that if you're distributing a product that is harmful to children, then you are responsible for keeping it out of their hands.

> I am not sure how well this will work

Same. Tobacco ID laws don't entirely stop kids from using, but they definitely help, and they create strong incentives for tobacco companies to stop kids from using their products. Tobacco companies have a history of exploiting children for profit, and continue to do when possible.

I'm sure children will continue to be exposed to porn on the internet, but we need to work to minimize that as much as possible, as we've done pretty successfully with tobacco (though vaping is turning that trend around). I'm a free market capitalist, but when it comes to harming children I draw a pretty hard line.

I think the harm of porn is heavily theoretical, while that of tobacco is not.

Also, unless already addicted, people aren't programmed to impulsively seek out tobacco as a core physiological drive.

> I think the harm of porn is heavily theoretical, while that of tobacco is not.

For adults, the harm of porn may be less obvious and harder to quantify, but it's not theoretical. There are plenty of data to support the idea that porn is harmful.

For children, we don't need data. It's just common sense, and you would be hard-pressed to find a parent who is okay with his child watching content on Porn Hub.

> then that kinda makes it impossible as a parent

> on-device content filtering would be a better method of restricting access to porn for children, they write.

I'm not advocating against on-device filtering.

My point is that the existence of on-device-filtering is one of the reasons why this law is problematic. It imposes a burdensome restriction before less burdensome restrictions have been attempted.

The presence of porn online does not make it impossible for parents to do anything about the devices in kids' pockets. We have other avenues we can use try to address that problem before abridging speech. The lack of attention to those methods and the willingness of lawmakers to jump to the most burdensome restrictions that they think they can pass -- that makes the law (and their motivations) more suspect.

We are not actually in an impossible situation that can only be solved with Internet IDs. The existence of on-device filtering is why the situation is not like a liquor store that's down the street. Digital devices allow for additional mechanisms for safety and parental controls, and Texas lawmakers have ignored those mechanisms.

There are many things that can be done to protect children, all with varying levels of effectiveness and burdens.

Forcing porn distributors to stop providing their content to children and to publish health disclosures is one of the most basic things that can and should be done. But I agree it shouldn't stop there, and on-device censorship could be another tool that legislators use. However, I think you're underestimating the burden and difficulty of rolling out such technology, and overestimating the effectiveness and legislators' ability to mandate it.

You've flipped the order here to advocating that we should start with the most burdensome restrictions. That's not how the 1st Amendment and compelling government interests work.

> is one of the most basic things that can and should be done.

The entire criticism of this proposal is that it's not basic and is in fact wildly complicated and has massive privacy and security implications. You can't really paper over that, you're advocating that we start with the most dangerous policies and get around to less dangerous policies later, maybe, if we feel like it.

> I think you're underestimating the burden and difficulty of rolling out such technology, and overestimating the effectiveness and legislators' ability to mandate it.

Perhaps Texas should study some of that stuff and look for solutions before jumping to more extreme policies. What are the actual problems in front of this technology? Pornhub already labels its content using standardized headers (https://www.rtalabel.org) and iOS and Android already have tools that react to those headers and can be used to block content. So is the problem here that parents don't know about these controls? Is this a problem of parental education? Or is the problem that the tools are buggy? Is the problem that the parental controls aren't comprehensive enough? If so, what areas and apps don't they cover?

Has any research been done on that by Texas legislature? No.

The fact that they've largely skipped over those controls entirely suggests that this is less about building safety mechanisms and more about controlling access, which is consistent with the fact that these laws are heavily sponsored by "pro-family" and religious groups who aren't only concerned with children accessing porn, but in fact have very public moral objections to porn in general. I'm not overestimating Texas's ability to legislate, I'm pointing out that they haven't haven't even tried to legislate, and that matters when they're trying to defend against 1st Amendment challenges.

There should be an order to the legislation we attempt because it is exactly as you say:

> There are many things that can be done to protect children, all with varying levels of effectiveness and burdens.

This is correct, every solution has varying levels of effectiveness and burdens. And that is how we prioritize legislation. Where constitutionality is concerned, it is the responsibility of the legislature to exhaust less burdensome solutions before they attempt to implement more burdensome solutions that abridge rights to adult privacy and access to adult content.

Texas hasn't gone through that process, but proponents of these bills still want to draw the (entirely incorrect) comparison between digital restrictions and physical ID checks. They're not equivalent, there are additional (largely unexplored) tools available in digital spaces to keep kids safe that are not present in physical spaces. There are also more risks to privacy and security that are present in digital spaces when collecting IDs, but proponents of these bills ignore those risks entirely (possibly because, again, these bills are regularly sponsored by (small-c) conservative family activists for whom being as burdensome as possible to the porn-industry across the board is a desired effect of the legislation.

It's improper to compare digital ID laws to physical ID laws; the affordances and risks of digital and physical spaces are entirely different, and many of those affordances in digital spaces remain largely unexplored by legislature. But proponents want to skip over that entire conversation and imply that protecting kids requires us to start forcing websites to start collecting drivers licenses or credit card details.

> You've flipped the order here to advocating that we should start with the most burdensome restrictions.

No, you're saying it is the most burdensome. I'm saying it makes to hold porn distributors accountable for who they distribute to. No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that. Whatever that burden is, it simply makes sense to put a lot of it on the people producing and disseminating the stuff.

> iOS and Android already have tools that react to those headers and can be used to block content

Are you saying Apple and Google should be responsible for managing pornographic material used on their devices? Should Smith and Wesson be responsible for how people use their weapons? Apple and Google can provide these tools, but what kind of legislation would you propose we have around it?

> So is the problem here that parents don't know about these controls?

The problem is that parents protecting their children from porn is only part of the solution. Again, I'm not arguing against these kinds of tools (and possibly legislation). I'm saying that implementing these tools without reeling in the distributors is akin to banning drug paraphernalia without regulating drug sales.

I don't know the details of how TX legislators expect porn companies to ID their users, and I totally agree that people have a right to privacy, especially from the gov't. But we need to balance the competing interests here, and the current systems make it way too easy for kids to access porn. I'm not convinced that the best path forward is to let porn companies distribute to whoever they want, and require tech companies and parents to compete with that. We might as well deregulate vape pens while we're at it.

> No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that.

Then what value to the conversation are you bringing? Like, seriously, I don't mean to be snarky -- legitimately, if you're not going to evaluate the risks and burdens, then what possible conversation can you have about the 1st Amendment implications of this law?

"This law is dangerous"

"I'm not going to make a decision on whether it's dangerous, but we should do it"

What reaction do you expect me to have to that?

> Apple and Google can provide these tools, but what kind of legislation would you propose we have around it?

Legislating that the tools are provided could be an option. Legislating labeling would be problematic but would have fewer 1st Amendment implications than what you propose; it would be much more likely to survive a 1st Amendment challenge. Even beyond regulation, government awareness campaigns for parents about the availability and usage of these tools could be an option. Legislating standards for these tools and functionality requirements could be worth looking into. Whether or not public government institutions like schools are even using these tools at all might be valuable data to collect.

At the very least, you'd expect some kind of tangible information about where these tools fall short. 1st Amendment challenges can be won based on governments shortcutting other legislation and skipping out on requirements to provide actual evidence that other restrictions wouldn't have been sufficient.

Note that Pornhub is not actively trying to show porn to minors. They're just not, they voluntarily label the entire site. This is not like fighting against the ad industry, the businesses involved are trying to label their content, they're not trying to sneak it through filters. So what specifically are the holes in the current technological solutions and parental controls? You say that parents protecting kids is only part of the solution, but... what specifically is insufficient about that? What is deficient in the current tools and why couldn't that deficiency be met with additional regulation around labeling standards?

Again, on-device controls are an affordance that is totally absent in physical spaces. It is inaccurate to equate digital access controls and physical access controls, they exist quite literally in different worlds. Distribution is in many cases in the physical world the only mechanism available for restricting children's access to harm. On the Internet, that's not the case -- and so there's an additional responsibility here to justify a much riskier regulation and to explain why the additional safeguards that digital spaces afford are insufficient.

> I don't know the details of how TX legislators expect porn companies to ID their users

Maybe you should research that? You're having a conversation about the constitutionality of this law, the ID requirements are pretty important to that conversation.

> But we need to balance the competing interests here

You can't do that if you're unwilling to quantify what the burdens are. You're telling me we need to balance competing interests, and you're refusing to look at what the competing interests are and bringing no data or research forward as to why device-level controls aren't sufficient or what the actual problems are that need to be addressed.

> and require tech companies and parents to compete with that.

Pornhub is not trying to show children porn; this isn't a competition. I would love to see any kind of evidence that Pornhub is motivated by anything other than what they say -- that the law is extremely burdensome, runs the risk of bankrupting large swaths of the industry, and abridges the 1st Amendment rights of adult content producers and the 1st Amendment rights and privacy rights of adult consumers.

But to have that conversation, you can't handwave burdens. The entire conversation is about burdens. If you don't have an opinion on what those burdens and risks are, then respectfully, you don't really have anything to add to the conversation.

----

I do think this in particular is a misconception here that's important to point out though:

> Whatever that burden is, it simply makes sense to put a lot of it on the people producing and disseminating the stuff.

I'm sorry, but that's not a 1st Amendment consideration. If a law creates a burden beyond the state's compelling interest in that law, then it doesn't matter who it's applied to, it's still unconstitutional. Additionally, part of the criticism of this law is that it doesn't only place a burden on distributors, it also places a burden on adult consumers. Putting a restriction where it "makes sense" is still inappropriate when it creates 1st Amendment burdens for ordinary citizens who will bear the brunt of the privacy risks involved. But even if that wasn't the case, you can't win a 1st Amendment lawsuit by saying, "yes the law is burdensome but if anyone should be burdened it should be them." The 1st Amendment doesn't care about that.

My point is simple: Porn companies have a duty to keep their product out of the hands of children. I didn't intend to get into the details of the legislation, but on the surface I think it's perfectly reasonable to require proof-of-age from porn users, and to require the display health disclosures.

I think a lot of things sound reasonable on the surface before the details are clear. Keeping porn away from children is a good goal to have, and porn companies do have a duty to help with that. I think Pornhub itself would agree with that. So I understand having that initial reaction; it's a completely normal, human reaction to have to the idea of children watching porn -- I have that surface-level reaction too.

Unfortunately, the devil is in the details and surface-level analysis of the legislation doesn't capture the actual problems with the law.

Respectfully, you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case (https://news.ycombinator.com/item?id=37092329) but I think it's important when doing that kind of analysis to take the time to figure out what the actual consequences would be of the legislation being proposed.

Especially where sex/porn is concerned: we're coming off of FOSTA/SESTA, two bills that were designed to help keep sex workers safe that sounded good on the surface and that have been widely criticized by sex workers as having made their lives significantly more dangerous. Legislating sex is complicated. In this case, both free speech and child safety are too important for people to be making decisions about this law without digging into the details.

> you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case

I came in saying that their stance that they should not have to ID their customers because there are better methods to keep porn away from kids and TX lawmakers don't care about children is weak.

I was specifically focusing on that rationale, not the details of an ID system. I have no doubt that that will be fraught with issues. But the porn companies don't want to play ball at all, which I think puts them in a very weak position.

Hopefully that clarifies my original comment.

> I came in saying that their stance that they should not have to ID their customers because there are better methods to keep porn away from kids and TX lawmakers don't care about children is weak.

Right, but you don't know if it's weak. You don't know what the downsides are of digital ID systems online, you don't know if the better methods being proposed aren't just as if not more effective. Digital ID systems sound good to you, but you haven't dug into the details to figure out whether they actually are a good idea here.

You're upset that Pornhub is saying they're not a good idea for online systems, but for all you know they're completely right.

> But the porn companies don't want to play ball at all

I don't understand how you can say this; Pornhub is offering solutions but saying that the ID requirements here are problematic. And you're refusing to look into the effectiveness of those solutions and refusing to try and figure out what would be deficient about those systems but you're mad that... what, Pornhub counter-offered mechanisms that would help reduce child exposure to porn? In what world is that not playing ball?

Of course in terms of the actual lawsuit, whether or not they're "playing ball" has nothing to do with the strength of Pornhub's position. It is not a valid defense against 1st Amendment claims to say, "but they're not helping enough." The government does not get extra rights to abridge speech just because they think a company should be working with them more. It's extra silly in this case because Pornhub is explicitly trying to be productive and offer suggestions. But even if they weren't -- no competent judge is going to look at cooperation with state governments as a precondition to 1st Amendment rights.

----

In general I just think:

"We should do X"

"X has problems, why don't we try Y"

"I don't want to talk about the problems with X, why aren't you just doing it"

is not a reasonable take to have.

You’re entitled to that opinion. I am of the opinion that porn companies should not be able to freely provide their content to children with impunity. Parents and device makers should provide censorship solutions, but that doesn’t absolve porn providers from their duty to check the ID of the people who view their content.

I never said I don’t want to talk about the problems with online ID. You’re arguing with a strawman.

> I never said I don’t want to talk about the problems with online ID.

> I was specifically focusing on that rationale, not the details of an ID system

> I didn't intend to get into the details of the legislation

> No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that.

It's very easy for you to say that Pornhub is just being lazy or that they're deliberately trying to show porn to children when you refuse to look into what it would require to comply with Texas's law or what the magnitude of that burden would be both on companies and on regular adults.

Your description of Pornhub's "duty" is an abstract notion that you're refusing to connect to any practical real-world implementation online. That allows you to keep characterizing online ID as just a basic duty that Pornhub should be helping with. But you don't have anything to back that that up, it's a purely surface-level "but doesn't is sound good that Pornhub should take responsibility for this" perspective.

And when I've tried to talk about the actual consequences, you just handwave that as "well sure there will be consequences, but we should do it anyway." No, if there are massive consequences, we shouldn't do it. Even if it sounds instinctively good to you or feels more "fair" because internally you're just imagining this as a casual ID check like you'd give to a cashier before buying alcohol. In fact, if a system has obvious downsides and will be worse for everyone and if better options are available, then that does absolve Pornhub from the responsibility of going along with that obviously flawed system.

And digital ID is an obviously flawed system. This conversation has all the energy of law enforcement complaining that tech companies keep talking about how breaking E2EE harms security. "Yeah, we know it's difficult, but nerd harder, figure out how we can have the backdoor we want. You're not being constructive with us, you have a duty to access that information when we ask for it. What gives you the right to shirk your responsibility to know what your users are saying?"

But it's not Pornhub's fault that you have an unrealistic expectation about how digital online ID would go.

> Your description of Pornhub's "duty" is an abstract notion that you're refusing to connect to any practical real-world implementation online.

It's called a thesis. We haven't delved into any of those details because we can't even agree that this is their duty. Pornhub seems to think it isn't, because it says other things should be done instead. You seem to agree.

It's okay if you don't think porn providers have any duty to verify the age of their users. I think that's pretty messed up, but you're entitled to that opinion.

:shrug: And it's your opinion to have if you think that surface-level notions of duty mean that we should pass bad policies that harm everyone. My perspective is that's incredibly shortsighted; but if the last however many decades of the war against E2EE, drugs, sex work, and privacy have taught me anything, it's that you have plenty of company that agrees with you. Luckily where a 1st Amendment lawsuit is concerned, that's very likely not the perspective that a Supreme Court will have.

The notion that Pornhub is in the wrong because of some duty that overrides supposedly "secondary" details like whether the policy will work, who it will hurt, whether it can be practically implemented at all, and whether or not it's even an effective way to keep kids safe in the first place is very characteristic of a lot of conversations that people have about legislation today. Whether the law works isn't the thing they're debating, what they're debating is how the law feels and whether it feels fair or intuitive. Then a bunch of people end up getting hurt by the law, and they shrug their shoulders and ask how on earth they were meant to predict that.

I think it's a misguided attitude and will end up harming the same kids you're claiming to care about, but that's just my opinion. You're right that we have different opinions about duty. I think people have a duty to build mechanisms that actually protect kids, not just to make policies that sound like they're protecting kids. And I think that means we have a duty to actually evaluate the laws we're talking about and to figure out what their effects (both positive and negative) actually are.

Okay, I feel like we're talking about different things. Again, I never commented on the specifics of the policy. I just said the plaintiff's position is weak, and that they have a duty to keep their pornographic content away from kids. It's very concerning how you can't even agree with me on that basic premise. And now you're even using their pathetic tactic of saying I only "claim" to care about children.

Honestly, agreeing on the duty of porn companies to keep their content away from children was supposed to be a layup. Pretty concerning that we can't even establish that as common ground.

> Again, I never commented on the specifics of the policy. I just said the plaintiff's position is weak

We don't disagree on the duty of porn companies to protect kids. We disagree on whether it makes sense to blindly support a policy that you know nothing specific about.

> And now you're even using their pathetic tactic of saying I only "claim" to care about children.

I will apologize for this, I can't speak to your motivations and I don't have any insight into what you feel about kids. I shouldn't have included that phrasing. I will however say that however much you do care, you don't seem to care enough about kids to actually make sure the policies you're supporting will help. I'm reminded of FOSTA/SESTA once again; people had good intentions, just not good enough intentions to figure out if they were helping or hurting. They did care about sex workers, but ultimately they cared about the image of helping sex workers more than they cared about the reality of helping them.

So they passed laws that looked good but were ultimately harmful, and when people pointed out that those laws were harmful lawmakers did exactly what you're doing now -- they accused critics of abdicating responsibility and supporting trafficking.

The Texas law is the same. It's an ineffective, harmful policy but it feels good, so it's easy for you to be outraged and say that people who point out that it's harmful just don't want to protect kids or don't believe that porn companies should protect kids.

It's irresponsible for me to read into your intent about why you're doing that, I apologize. You could very well be doing that because you want to protect kids. But I can pretty confidently say that your instinct to protect kids is not winning the fight against your instinct to look like you're protecting kids. It's irresponsible for you to advocate for laws that you don't know the impact of and where you don't know if those laws will help, and it's irresponsible for you to characterize criticism of those laws as antipathy to kids being exposed to porn. Criticism of bad policy is not the same thing as dereliction of duty.

I know you didn't comment on the specifics of the policy. My point is that you should have looked at and commented on those specifics.

So which is it? Did I never comment on the policy, or did I declare blind support for it?

Do you really think I know _nothing_ about the policy?

I've had enough of the insults, the assumptions, and strawman attacks. I don't see any effort on your end to understand my position, and you've done nothing to convince me that porn providers should not have to verify the age of their users. Ciao.

I hear what you are saying but we have to balance "will no one think of the children" with giving the the government, especially one like Texas that would likely 'accidentally' leak the porn viewing habits of a political opponent. Is this really the type of ammunition we want to give to a man like Ken Paxton the Attorney General of Texas, look at what he is already accused of doing.

At the end of the day, we have to put a large share of the responsibility on parents. My kids have ipads and phones but I just disabled the internet. They are not old enough for it. When I feel like they are, I will enable it. I will also keep track of all sites that they visit when I do. Its on me.

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