Age Verification Lawsuits Advance at 10th Circuit, La. Fed Courts

DENVER—A pair of lawsuits challenging age verification requirements for pornography sites in the U.S. states of Louisiana and Utah continue to advance through federal district and appellate courts. The two lawsuits were brought by adult industry trade organization the Free Speech Coalition (FSC) in a bid to block the age verification laws implemented by the two Republican-dominated states. The lawsuit challenging Utah Senate Bill (SB) 287 was killed by a federal district judge on technical grounds but was appealed to the Tenth Circuit Court of Appeals in Denver. According to court filings, the Free Speech Coalition has filed appendices for the appeal, meaning that filings for parties involved in the case are expected in the coming days. Sean Reyes, the attorney general for Utah, and Jess Anderson, the public safety commissioner, were named as defendants in the case brought by the FSC and companies in the adult space. Due to how Senate Bill 287 is structured, a judge in the U.S. District Court for the District of Utah dismissed the lawsuit. SB 287 is a bounty law, meaning that it bars the state from enforcing the law and leaving that responsibility to the state’s courts to issue private enforcement actions. In Louisiana, the FSC and a similar class of plaintiffs sued to block House Bill (HB) 142. This law was the first of its kind in the country when it entered into force on January 1, 2023.  Pornhub’s parent firm, named MindGeek at the time (now called Aylo), deployed an age check strategy utilizing LA Wallet. LA Wallet is Lousiana’s digital ID platform developed by software company Envoc. Reporting on the costs of each check for users indicates that traffic to Pornhub from Louisiana-based IP addresses fell by over 80 percent, and searches for VPNs and proxies soared so that users don’t have to enter their government ID to access adult content.  Volume, costs and the effectiveness of Envoc’s software are at issue in the Louisiana lawsuit that is before the U.S. District Court for the Eastern District of Louisiana. The plaintiffs most recently filed a supplement to support their motion for a preliminary injunction blocking the requirement. The defendants named in the lawsuit include Louisiana Attorney General Jeff Landry and others, like Division of Administration head Jay Dardenne. Dardenne oversees the agency that is tasked with implementing the LA Wallet program and is additionally responsible for contracting Envoc as the state’s sole developer of the digital wallet software. The judge in this case issued an order on the defendants requesting supplemental information on the costs and adoption of LA Wallet as a solution for age verification. In a declaration, Envoc’s president and CEO Calvin Fabre said that a cost assessment formulated by FSC’s executive director Alison Boden is inaccurate. “For corporate entities seeking to use our anonymous age-verification service, the price sheet attached to Alison Boden’s supplemental declaration ... does not reflect LA Wallet’s current prices,” says Fabre in the filed declaration. “Currently, the anonymous age verification program is $1,500 for [the] initial set up and then $0.10 per check thereafter.” The declaration also featured responses to certain concerns from the plaintiffs, including whether Envoc’s age-checking software is “agnostic” to the type of content that it is being used to block. “The claim both is nonresponsive and strains credulity—nonresponsive because the court merely requested a list of companies that use LA Wallet, not companies 'associated with a particular age-verification request,'" writes counsel representing the FSC in their supplemental response to the defendant’s motion to dismiss due to a lack of jurisdiction.  All of this is “hard to believe because LA Wallet (1) requires a contract (and, indeed, a signed NDA) to provide age verification services for a requesting entity, and (2) would not function safely and properly without a means of identifying the entity requesting a verification.” Dominic Ford, creator of JustFor.Fans (a suing party in the lawsuit) additionally submitted a supplemental declaration. “I have entered into several contracts for age verification services used in connection with the JustFor.Fans platform," Ford writes in his declaration. "Those contracts have confidentiality provisions which prohibit me from discussing the terms of the contracts, including pricing models and disclaimers as to the risk of hacking or accidental disclosure of identifying information, without a court order and advanced notice to the companies of the pending disclosure.” AVN reported on costs related to age verification software. We were unable to obtain information from software providers without signing non-disclosure agreements.