Insular lawmaking leads e621, Pornhub to block North Carolinians

Just before the new year chimed in, furries in North Carolina - and a few others nearby - found themselves blocked from accessing well-known fandom imageboard e621, which indicated that they would no longer be serving the state without further discussions with legal experts:

Due to the current legal situation in North Carolina and the uncertainty surrounding it, we will be blocking access to e621.net from North Carolina until we can consult with our legal counsel on this matter. We did not come to this decision lightly and we will do what we can, as we can, to rectify and remedy this situation so that we can restore access to those users that are affected by this matter. We sincerely apologize for this inconvenience and will have an update as soon as possible. - e621 news updates - 2023-12-31

e621 is not alone in this action, as Pornhub has also blocked access to its page in North Carolina.

Law puts content sites in a quagmire

One major criticism Pornhub has of the new law is that while it tasks them to use a commercially available database to verify the age and identity of visitors, it doesn’t go into detail on how they would legally be able to do this, or even if a viable service for this task even exists.

The law as written says that where more than a third of a website's content is deemed harmful to minors (as defined in an earlier law) it must take action to identify that users are not minors.

This may seem a reasonable request for those of us who live in non-Internet spaces. You have to card people going into clubs in the real world. However, the Internet can prove a challenge, as the person at the screen cannot be seen by the person on the other side, unless you're in a videoconferencing session. The user also doesn’t have the ability to simply hand a physical document to someone to quickly glance at. In the real world it’s easy to take a look at this document and then see that the person handing it to you is in fact the same person.

Obviously on the Internet this can be tricky. So how can you prove that you are doing your due-diligence to ensure a minor doesn’t try and lie about their age? Well you can retain the identification that the user used and was approved. This is so that if later a parent of the minor comes forward that they corrupted Junior, the site can show that junior circumvented the wall put in place by providing false identification.

Unfortunately, this is where section 66-501 (b) and (c) comes swooping in to make this ability for these sites to defend themselves difficult.

(b) No data retention - Any commercial entity, or third party that performs the required age verification on behalf of the commercial entity, shall not retain any identifying information of the individual after access has been granted to the material.
(c) Civil liability - Any commercial entity, or third party that performs the required age verification on behalf of the commercial entity, shall be subject to civil liability for any violation of this section.

So in the case of this law, if a child uses bad identification to gain access to the site, the site cannot hold any proof that the child used bad identification. If the parents of the child sue and the site indicates that it was an adult’s card that was used, then they cannot present this as evidence or they will be sued for retaining information by that same law.

The law lawmakers overlooked

It must be noted that there are laws to protect businesses that serve age-restricted beverages and drugs from individuals who use false identification to commit fraud to acquire those substances. Someone doing this faces a class one misdemeanor according to 18B-302. This new PAVE law doesn’t extend that fraud protection to these sites that are now required to perform similar actions.

If the law’s intent was to protect children while not getting in the way of tax paying adults to be adults, it is poorly written. If the law’s intention was to instead burn away the legal pornographic industry from the internet in North Carolina without explicitly doing so in such a way where it could be challenged on First Amendment grounds, then it is a work of genius.

Which was it in this case? Well, I’ll end with a quote from State Senator Amy Galey that can help give us an indication:

“[We’re] willing to work with anybody to improve the law and to make it better target what we want to do, which is to protect children.” She also said it’s “a little challenging to think that this industry is some kind of great player with clean hands.” - WRAL News Article

It’s a little challenging to think that lawmakers got any input from the site runners their new law impacts before release with a quote like this. This is evidence that the law was made in an insular private room full of politicos, and now the people have to deal with the fallout, as they always do.

One good starting point on fixing this law to alleviate the impossible issue presented to these businesses would be to expand the fraud protection provided in North Carolina law 18B-302 to include them.