PORN LAW: When Your Kink Is Strict Scrutiny but the Court Only Goes Intermediate

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Matt: And I think really all you need to know is that Clarence Thomas wrote the majority. Yeah, Clarence Thomas himself, well -known porn fan, of course, as we learned during the hearings.

0:00:18 Matt: Where the justices used to actually have to sit downstairs on Friday nights and watch some of this stuff. And, you know, so, yeah.

0:00:21 Thomas: They had to. Yeah, they're forced to. Sorry, hon. Late night at the old courthouse.

0:00:27 Matt: Down in the movie room.

0:00:28 Thomas: We're all getting in robes and we're going to. Hello and welcome to Opening Arguments. This is episode 1175. I'm Thomas Smith. That over there is real life immigration attorney, Matt Cameron. How you doing?

0:00:33 Matt: Hey, all right, just hanging out. A couple guys talking about porn. Sure, let's do it.

0:00:53 Thomas: No, we're starting the show now, Matt.

0:00:55 Matt: Oh, you're recording? Okay, all Right.

0:00:55 Thomas: I started, I went into the show. Yeah. Yeah? It's okay. I can delete this first part. It's fine. No, we're going to talk about porn law. Yeah.

0:01:02 Matt: Yeah, good times.

0:01:04 Thomas: It's always good when the government tries to do laws about stuff like that. I think it always turns out just looking back through history. Yeah.

0:01:04 Matt: First Amendment, especially when it involves technology. Usually the legislatures and the judiciary can be counted on to understand this tech pretty well, as we're going to see. So I'm going to talk about this Paxson v. Free Speech Coalition case that came down. We've got a whole bucket of Supreme Court cases. We can eat on this stuff for months, just talking about what the Supreme Court did this term. But this is one we didn't get to talk at all, so I wanted to get into it. And then we've got a great guest to help us understand the tech a little better, probably better than the justices ever did. Yeah.

0:01:36 Thomas: This is great because we're gonna talk about the law. And then we've got a great guest talking about, as you say, the tech and like sort of the practical effects of these laws a little bit. It'S almost like a OASIO combo. You know, we get like the law and some scholarship kind of thing. Best of both worlds, I think. I can't wait.

0:01:51 Matt: It's a great guess. Steve Sanderson doing some amazing research on tech and policy, which I'd love to get more into that kind of of stuff because lawyers can't always understand it. Judges can't always understand It. And I think as we'll see, the legislature certainly can't. So fun to talk about on this one.

0:02:02 Thomas: So Matt, I'm familiar with, you know, know, they tried to do the whole like ID law stuff and all that, but give us a teaser. What was the court case related to on this? Wow.

0:02:10 Matt: So this is a Texas law primarily that there are several state laws, as we're gonna talk about and see if Sanderson with that are trying to introduce age verification to pornographic content. This is something that actually has ended up changing First Amendment law in a pretty fundamental way, which I'm a little concerned about where it's going. And of course, this is what always happens, right? The most unpopular speech is how we change First Amendment law.

0:02:24 Thomas: I think porn is pretty popular actually. I like it's a hit. I think it's around to say I'm calling it right now. I Think it's got staying power. You mark my words audience. I called it here first porn people like it.

0:02:40 Matt: Internet internet seems to be taking to it. Yeah, it's true. So good point. It is popular speech. It's just unpopular in other ways. Easy to restrict.

0:02:48 Thomas: No, but I know what you mean. And it is a little scary in this day and age, anything involving new jurisprudence around around X, right? Like whatever it is, that's scary because the Supreme Court, but the First Amendment, it's crazy for something like this to be changing fundamentally how the First Amendment works in the year 2025. When I thought we had that somewhat figured out, like I feel like it would be pretty difficult to have a novel case around that. So that scares me. All right.

0:03:11 Matt: Yeah. I am concerned about where this goes. I mean, there's a lot about this that I can understand, certainly, about why we need these kinds of restrictions. And we'll get into it. But I do think that like so many things the Supreme Court is doing right now, it can take us down a bad path. And I think really all you need to know is that Clarence Thomas wrote the majority. Yeah?

0:03:25 Thomas: God. Okay.

0:03:27 Matt: Clarence Thomas himself, well -known porn fan, of course, as we learned during the hearings. I remember. Yeah long dong silver.

0:03:34 Thomas: You can'T stop telling coworkers about porn back then.

0:03:37 Matt: Yeah but he doesn't want to talk to us about it.

0:03:39 Thomas: That'S fantastic. Isn'T it? That'S so great. Yeah. I can'T wait to get into it. It'S interesting, but also really excited for Zeev Sanderson, our guest, to talk more about the actual effects as studied by science people and math people. Don't worry, Matt. I'm working on a new invention to censor any numbers for just you. You know, it's any math. It'll bleep. No one else will hear, but for you, I think you should hear pleasant tones over it just in case.

0:03:59 Matt: Maybe some kind of age verification so that our younger listeners don't have to deal with math.

0:04:05 Thomas: Yeah, math verification. All right. Well, we'll take our usual break. Please support the show, patreon.com/seriouspod. We'd really appreciate it. It's also talk about the show, share the show. Review the show all that stuff. If it's not just about if you can be a patron, there's all kinds of ways to get the word out. We really feel like it's important. It is harder than ever to get to the real actual truth in this today's world. So if you support what we do, those are ways you can help us get the Word out. So patreon. Com slash law and after this break, we'll talk about Clarence Thomas's porn habits.

0:04:40 Ad: [Ad break 1 — ad music]

0:04:40 Matt: Start with a quick reminder about how the First Amendment is reviewed by the Supreme Court before we begin anything else, because they're going to apply a very different standard than they usually do. So typically speaking, now let's just remember the difference between indecency and obscenity. Let'S just start there. So the stuff on Pornhub and other mainstream porn sites is generally considered to be indecent, but not obscene. So it's stuff that, generally speaking, is protected by the First Amendment. Obscenity, straight up obscenity is not protected by The First Amendment, that stuff that's just outside of all common decency, basically. And things like those animal crushing videos that was reviewed by the Supreme Court, certainly, I think everybody can agree that there shouldn't be videos of animals being crushed. Obviously, things like, you know, involving minors and other things like that.

0:05:17 Matt: It's, you Know, it's a pretty outside category at this point. Obscene is right,

0:05:20 Thomas: So porn is considered considered indecent, but not obscene. And you're saying the crushy, horrible videos, the crap that's like, actually, we do restrict. That's which? Obscene.

0:05:31 Matt: Obscene, as it should be. If you're going to say that some speech is just like outside of all common decency, that no one should ever see it. It should not be made, right? If it's hurting people, if it's depicting horrible acts that shouldn't ever be happening. And it involves children, obviously. I mean, that kind of stuff we can all agree on. But, you know, of course, you remember back with Two Life Crew about the conversation about certain kinds of rap being obscene. There were people who were prosecuted for selling Two Life crew albums in the late 90s.

0:05:51 Thomas: Yeah. Okay. I think that's what's messing me up. I'm getting mixed up because I think of obscenity as like, oh, well, they said the F word, but it's like no, that's the stuff that can be really, really horrible. And porn, literal porn is not obscane.

0:06:05 Matt: So you remember the Miller test, right, for all of this, which is going to come up a bit here. The obscenity test about, you Know, basically if it just has absolutely no value whatsoever. And it's something that's patently offensive. And the average person with temporary community standards would find this designed to appeal only to the prurient interest rate. A lot of this stuff has changed even in our lifetimes, certainly in our parents' lifetimes about what people think was obscene. There was a whole host of cases in the 60s and 70s where the justices used to actually have to sit downstairs on Friday nights and watch some of this staff.

0:06:29 Thomas: They had to. Yeah, they're forced to. Sorry, hon, late night at the old courthouse we're all getting in robes and we're gonna

0:06:34 Matt: Down in the movie room. Yeah, different times. Not since George W. Bush Bush really has anybody seriously been prosecuted for obscenity. Richard Ashcroft is long behind us. So I just want to remind you, just to start with, that indecency, that there is a compelling state interest in regulating indecancy, but it is First Amendment protected. But generally speaking, obscenities is not First Amendment -protected and can even be criminalized. So working back from that, because we're talking about content -based restriction, when we're talking about regulating indocency, across the board until pretty much this decision, the Supreme Court has generally agreed that for content - based restrictions that involve this kind of indecency, that it has to be strict scrutiny.

0:07:13 Thomas: Strict scrutiny I would think yeah

0:07:14 Matt: Because you're talking about restricting speech under the First Amendment, it's got to have the highest possible review. And that means you're going to have to have a compelling government interest, and you have to tailor that to that interest, tailor the solution to that interest. I don't think that the Texas law, and there's several laws that are at issue here, but the main one is this Texas HB 1181, which requires that users provide actual ID to access porn sites. And if they can't do that, there's $10 ,000 a day for websites that aren't in compliance. And if anyone can prove that a minor was able to access explicit content that should have been age verified, that's a $250 ,000 fine for the website. This is an extremely restrictive law that mandates ID verification. That's what we're talking about. So they're not regulating the actual porn sites. They're just regulating who gets to see them. Now, under strict scrutiny, and I think we're going to find this in talking to our guest pretty soon here, the question would be, is this the least restrictive way that you can keep kids from seeing porn. I think we're going to find, talking to our guests, there are other less restrictive ways that we could allow people to access this stuff. So under strict scrutiny, it's pretty well established that there is a compelling state governmental interest in keeping children from seeing a decent material in the same way that there are children from buying cigarettes and alcohol. There are some things kids don't need to do. And there's plenty of research about how porn especially can harm minors, especially boys, and help hurt intimacy and their ability to understand how to hold his sexuality and consent. And so, again, again, you don't have to be a prude to have a problem with kids looking at this kind of stuff. And there's also a lot of really extreme stuff out there. So in theory, some way to control who gets to see certain kinds of content on the internet is not a bad idea at all. And there have been, I just want to remind everybody, multiple attempts since the 90s in front of the Supreme Court. I did a quick look back ahead of this conversation. Back to, I don't remember, the Communications Decency

0:08:57 Matt: Act. It was under issue in Reno v. ACLU. I was actually, back in the late 90s, I was very interested in First Amendment law. I still am, but I was actually thinking of becoming... I don't know why I'm pausing significantly there. I was thinking of becoming what they called at the time an internet lawyer, which didn't really mean anything because the internet was new. And I thought it'd be cool to do internet law in 1997 when I was in high school.

0:09:04 Thomas: Porn star. Yeah yeah now now he has to change his answer no I'm just kidding what what were you thinking to be coming ah back then geez your parents were like get a real

0:09:25 Matt: Now my parents thought this was great. It was one reason I wanted to go to law school, because I wanted some way to go out there and help the wild, wild west of the internet, try to figure out what lawyers can do to make it better. And this is, of course, back in the glory days of the internet when it was good.

0:09:38 Matt: And of course, anybody who grew up in the late 90s, early 2000s will tell you about when the internet was good?

0:09:38 Thomas: Job yeah better certainly better than now I'll give you I'll give it that yeah

0:09:44 Matt: Certainly, yes. Not owned by three companies. Yeah. Congress tried really badly to regulate the internet by passing something called the Communications Decency Act. And it included a ban on display of patently offensive messages or images in any manner available to minors. So obviously, that was way too much. That is extremely overbroad. They found that there can be different speech available to miners, and maybe First Amendment does not protect speech that's aimed aimed at minors.

0:10:06 Thomas: Yeah that's what I wanted to ask about because I've done enough oas to be familiar with this kind of framework where different standards and strict scrutiny obviously being the highest and it makes a huge difference what level you're applying and I get that in terms of content -based restriction makes sense you want to have strict scrutiny obviously but the age thing does make it a little interesting the way you're you're presenting, it sounds like this is a change or something. Like I actually would have thought it applied this way already, that if it's just about limiting the age at which people can consume porn, I actually wouldn't have thought that wouldn't be strict scrutiny just because the age thing would kind of take it out of that and would make it not need to fulfill strict scrutiny. I thought that's already how it worked, but are you saying it wasn't how it works?

0:10:47 Matt: Yeah, this question particularly never come up. And the question is, is whether you're burdening speech or whether you're restricting speech, right? You're just making it harder to get to by having certain people having to prove certain things. And of course, there's the whole privacy issue of having to upload your driver's license potentially to a database that could be hacked. But this is a question that's come up again and again, is what kind of filtering, what kind gateway, what kinds of restrictions can we put on getting to the speech versus restricting the speech itself?

0:10:48 Thomas: Oh, well, but sorry, but there's also that. And then the age question, because if the case was just, hey, we want to make Make it so anyone of any age has to fill out a survey to get or something, you know, has to go behind some sort of security, something that might be slightly different. You know, you're making it hard for everyone versus just underage people. Isn't that like a slightly different thing? Because I feel like we have a lot of laws that limit what underage People can do. Hmm.

0:11:31 Matt: There's a more compelling governmental interest. And I think generally speaking, there is no First Amendment protection protection for indecent material if the state wants to regulate it that, you know, for underage people. The Communications Decency Act was just terribly written. It was very overbroad. They actually came back later with the Child Online Protection Act in 2004 in Ashcroft, BACLU. They tried to basically staple on the Miller Test to the Communications Decancy Act, the Miller Test being how you decide whether or not something is obscene. And that was sent back the first time and then it was upheld the second time. The COPPA, the Child online Protection Act, had basically an affirmative defense if you're providing something that might be harmful to miners, if you can require a use of a credit card or any other reasonable measures that are feasible under available technology. And the technology in play has been a question here. And there's a real question as to how far the technology has come now beyond the time of Ashcraft. But generally speaking, Kennedy found that even that, that did not pass the strict scrutiny test, because even though it prevented children from accessing harmful material, it wasn't narrowly tailored enough. That's really going to be the problem with all of this, is can you narrowly tailor it enough to enable everybody to access the material voluntarily? Is this the least restrictive way? And the reason that this, and I know this sounds so layerly to

0:12:35 Matt: The audience here when we're talking about this stuff, I know you understand the difference between strict and intermediate scrutiny, but it's a tremendous difference for if a law gets through or not, because a compelling governmental interest narrowly tailored to that interest is a very big difference from the intermediate scrutiny standard government is suggesting here, which is an important governmental interest substantially related to that interests, which means you could have all kinds of other restrictive things and other burdensome things slip through as long as it's substantially related and it's reasonably important. So the big question in this case was whether this age verification system should be reviewed by strict scrutiny or by intermediate scrutiny. And I believe this is the first time that something like this has been subjected to intermediate rather than strict scrutiny. Thomas ultimately found that intermediate scrutiny should apply, which is interesting because just 10 years ago in Reed v. Town of Gilbert, he basically said that any content -based restriction should be subject to strict scrutiny. Of course, in that case, he was making sure that churches could advertise.

0:13:25 Thomas: Course. Yeah.

0:13:25 Matt: That's very important. Yeah. Got to make sure they can do that. So he basically comes up with this new kind of standard for intermediate scrutiny involving these kinds of things. He says that strict scrutiny is unforgiving and ill -suited for such nuanced work. The only principal way to give due consideration to both the First Amendment and the state's legitimate interest in protecting minors is to employ a less exacting standard. Now look out. Anytime a Supreme Court justice, especially Clarence Thomas, is talking about a less exacting standard on your speech, that is concerning.

0:13:54 Matt: So here's what he says. When the First Amendment partially protects speech, which again is when the content that would be for adults, it wouldn't protect it for minors, and the statutory burden imposed on adults is only quote -unquote incidental to blocking minors' access, then intermediate scrutiny applies to determine if the means of banning minors access are quote, ordinary and appropriate. Appropriate. That is getting around the fact that there's a serious privacy implication. There's a serious privacy interest here because you're telling consumers that they have to give their personal details, including their IDs, to a website that they might not want people to know that they're using.

0:14:23 Matt: That's a pretty significant inflection on your free speech. I don't think that really accounts for that. And I think that the reason they didn't want to apply strict scrutiny is because they knew in that case, if they talked to people like Steve Sanderson, they would find out that there are other ways they could do this that are far less burdensome that would work just as well.

0:14:39 Matt: So that's really, to me, the problem here. So Kagan and the liberals' dissent here are very concerned with the idea that they're giving intermediate scrutiny in this case because it is abridging the rights of adults to privately access explicit content. That's what she's saying, right?

0:14:52 Thomas: Right.

0:14:52 Matt: It's like, even if it's not completely barring them, it's making them a lot harder for them and it's imposing this new privacy concern.

0:14:57 Thomas: Oh, okay. OK, so looking at it less from like, well, you're allowed to restrict kids and more from like. Yeah, but the way we're doing it means any adult who wants to access speech is now infringing on that. I couldn't really use that to justify political something. I don't know if that's a good comparison, but if you're like, hey, we don't think that kids should be allowed to access LGBT content or whatever. And it's kind of sneaking in a lesser standard of review on that, even though it's burdening like everybody's burdened adults to be able to find what they want in speech. Speech. Okay. Yeah, sure.

0:15:28 Matt: Then that's my main concern here. The Free Speech Coalition, obviously, is there on behalf of big porn, so they want the the most restrictive possible look at this. I'm not on their side necessarily, but what I am on the side of, of course, is access to speech. I agree with Kagan here. I am just going to read a little bit from her dissent at the end here. The state may not care much about safeguarding adults' access to sexually explicit speech. A state may even prefer to curtail these materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials for every adult. So a state cannot target that expression, as Texas has here, anymore that is necessary to prevent it from reaching children. That is what we have held in cases indistinguishable from this one.

0:16:07 Matt: That's what foundational First Amendment principles demand. Because the majority departs from that right and settled law, I respectfully dissent. We get it respectfully in there.

0:16:14 Thomas: I mean this is the kind of one where I okay I guess I get the respectfully. There's been some recent ones where it's hey just drop that. Yeah and by the way let's let's open a potpourri of new adjectives for or sorry that's an adverb I guess because yeah modifying the descent. I very frustratingly dissent. I can't handle this anymore -ingly dissent I can'T believe what I'm seeing anymore dissent you know let's Let's open up a new vocabulary there. Hey, we're not accomplishing anything else right now in the Supreme Court. Just like, can you effing believe this S, comma. But anyway, this is a respectfully. Okay, sure.

0:16:35 Matt: Right. Maybe just like stroking out, comma, I dissent, pretty much. This is a classic, like, reasonable minds can differ kind of thing. We're talking about what standard of review should be applied to First Amendment speech. But as she points out, there are plenty of cases in the past, something like the Playboy case from 2000, where there was a restriction on cable channels where they could only show sexually explicit material from 10 p .m. to 6 a .m., and the court found that strict scrutiny had to apply there and that there were less restrictive ways of doing that. Just to give one example, going all the way back to 97 in the Reno case, I was telling you about the Communications Decency Act. Justice O 'Connor, I went back and read her concurrence, which is pretty impressive considering that she was 67 at the time. She was pretty into the internet. She had some interesting things to say about this, but she was comparing it to a zoning case.

0:17:26 Matt: And she's saying at the moment, right now, we don't really have the technology to create an adult zone. That's not a thing we could do.

0:17:32 Thomas: Interesting.

0:17:32 Matt: But if we could, if we can do it in a way that doesn't burden people too much, then that would be something I'd be interested in seeing. But right now that's not what this is doing. The Communications Decency Act has overbrought it, I concur. I like the zoning analogy because that could work.

0:17:43 Thomas: Like you say, not bad for that time and that age. Certainly a better understanding of things than some of the dinosaurs right now have of the internet.

0:17:51 Matt: Totally. She lists out in that concurrence how effective screening could work. And in 2004, in Ashcroft, they're talking about filtering technologies and all the stuff that is available for parents if they want. But of course, as we all know, kids are much smarter than parents when it comes to this stuff, and they can get around it. We're going to hear from a couple of Catholic parents in the Supreme Court arguments who are concerned about these things.

0:18:11 Thomas: Oh, great. Great. I'm sure they'll have a really cool and chill and sophisticated view. Let's see. Hmm.

0:18:15 Clip: When you provide this information, that it is being collected, it is a target for hackers, it is something that is different from just flashing an ID in physical space. But I'd also note that you have content filtering, as the court has recognized, that is the analog in the physical space that's being out. In Ashcroft 2, the court, you know, expressed anxiety about the fact that technology moves so fast that the five years between the district court findings in that case and the case being at the Supreme Court, You know, that technology may have moved beyond the record at that point. It's been 20 years since Ashcroft. The iPhone was introduced in 2007, and AshcroFT was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.

0:19:08 Thomas: Yeah. Fair enough. Fair enough.

0:19:09 Clip: And I think that the explosion of addiction to online porn has shown that content filtering isn't working.

0:19:16 Thomas: How does that follow? I don't get that part. Do we have a report that like there's actual porn addiction in like under it? Like literally, I guess I'm saying those who would be affected by their parents filtering their content. Is that where we're seeing porn addiction? Because I kind of feel like it's not really that age, but I could be wrong there.

0:19:22 Matt: That's a good point. Yeah. I don't know if there's anything on the record about that.

0:19:33 Thomas: So just to make sure I had the point of that. I mean, I will say I was expecting a lot worse than I think it's reasonable for any parent to be like, yeah, it is a little hard to keep up with this stuff. I'm not entirely sure. What point was she making? Like, those points seem non -controversial, but I don't know what they were in service of exactly.

0:19:48 Matt: Yeah., it's something we're going to be talking to Zeeb Sanderson about because, as she said, the tech to actually keep kids away from this, I mean, you can just get on a VPN now for any of this stuff, right? You can easily avoid age verification just by getting a VPN and just coming in from some other state that doesn't have these laws. Because right now, just to be clear, if you're in Texas, if they know your IP is in Texas you can't look at this stuff without the age verification. This only applies in the states that have it. So I think these are reasonable questions that we need to talk to our guest about, about how far things have come. But I think that it was interesting for her to make the point as a parent who's tried to do this herself and I kind of appreciate it in that sense.

0:20:19 Matt: There's also kind kind of a funny alito moment at

0:20:18 Thomas: Always love a funny Alito moment.

0:20:23 Matt: 1445 I wanted to play

0:20:24 Clip: So one of the parties here is the owner of Pornhub, right? And what percentage of the material on that is not obscene as to children? Well, Your Honor, if we're talking about the youngest minors, I would agree that most of it is, and that is how we read the world. Is it like the old Playboy magazine? You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley, Jr.? Not in that sense, but in the sense you have sexual wellness posts about women recovering from hysterectomies Discussions of age verification proposals and where the industry lines up as far as what they think should be legislated All right, let's go down to what's the second most popular porn site?

0:21:09 Clip: You don't know you represent these people. We represent the industry, Your Honor, the portion of the industry that answers to U.S. laws and jurisdictions.

0:21:09 Matt: Taking

0:21:14 Thomas: These people.

0:21:17 Clip: Are you familiar with what they have? Your Honor somewhat so, yes, and I think the record offers some indications of that, but I'd also note that some of it is soft core by any account. It's people who are wearing less rather than more clothing we would recognize, but not anything that anyone would think to be obscene as to adults, And potentially for a 17-year-old, that would be up to a parent to decide what's appropriate for their minor. I mean, the district court was worried that this would have an effect on something like Netflix, right? I mean is Netflix a party here? Is there anything in any business other than hardcore porn a party hear or concerned about the application of this law to them? Well, Your Honor, you have the American Booksellers Association. You have O-Schools, which is devoted to sex education. You don'T have anybody else like that who could suspect to be a minor.

0:22:12 Thomas: Here, let me interrupt you proving my point wrong by just kind of trying to make it slightly differently in a way that doesn't allow you to respond. This is, should I keep going? I kind of get in.

0:22:13 Matt: Notes right yeah just hearing alito talk about the porn industry and about like reminiscing about essays and playboy magazine by Gore Vidal

0:22:26 Thomas: I just love this because he's just wrong in every step of the way. And I just want to say, if there's anyone who deserves the surely annoying treatment that poor Matt and anyone else who has to record with me suffers of me saying, stop hitting a mic, stop doing a thing. It's them. I think that, I think, I thank Alito's afterlife should just be mean. I'm not volunteering. I hoping they can clone me or something. Should just be me saying can you stop bumping your desk right by your mic? Can you stop, can you start going like making all these sounds bumping everything drives me nuts come

0:22:54 Matt: Like not my first complaint about samuel alito but there's a new one there's another one for you

0:22:57 Thomas: On yeah it's a new one for you it's not for me every single time I hear him I'm like you're just always slapping the thing but I love it's so stupid too because he's trying to make the point this is going to affect netflix well why aren't they a party is anybody he's like well you do have some other parties here like or some other you know what amicus or whatever yeah yeah but not literally netflix right it's like okay

0:23:01 Matt: Guys right yeah but not netflix no I mean he's just trying to say it's just a bunch bunch of trash mongers. What are you guys doing? It's just hardcore porn.

0:23:24 Thomas: Yeah you represent these people Like, it's like, OK, sure.

0:23:27 Matt: Right. Yeah. It's a major industry, whether you like it or not. There's one more little very quick, funny moment at 2421 with Alito. I might as well play it about his reminiscing about getting carded.

0:23:37 Clip: That was the exceptional instance where you might have, subject to the seller's discretion, some reasonable effort to ascertain the age. Well, if what you're facing is possible criminal liability, you may want to err on the side of safety. I know that when I try to buy wine at a supermarket, they require me to show an ID. I take it – it's kind of – I'm flattered by it.

0:24:06 Matt: I love how he just gratuitously has to mention that he still gets carded, that's right. It probably more of the clerk is like, wait, are you Samuel Alito? Can I see some IT? There's so much more to say about the way that the court doesn't understand or doesn't want to understand how these things can be regulated. But I'm just concerned kind of yellow flag here, if not red flag, that there's an intermediate scrutiny standard being applied to a restriction on speech, which is a pretty serious one, which, you know, as the lawyer was making a great job of arguing there, saying that it's very different to show a bounce of your ID going into a club or to buy alcohol than

0:24:09 Thomas: I still look great, everyone. Yeah. Yeah, yeah.

0:24:40 Matt: It is to upload something permanently into a server that anybody can get to later. And, you know, that is a pretty significant restriction.

0:24:45 Thomas: I think that's a great point.

0:24:46 Matt: And so as you were saying, you Now, at some point, if I don't know if Alabama wants to start restricting forums for LGBTQ teens.

0:24:52 Thomas: We know they are already labeling that stuff as pornographic. We knows they are doing that.

0:24:56 Matt: Exactly. Right, right, right. Discussions of marriage even among consenting adults, right? I mean, just like it's anything. We could have all kinds of state restrictions potentially. And if they find that it's an important governmental interest and that this is basically an okay to restrict it, then you get to have ID verification so you can hang out and talk about perfectly normal human stuff.

0:25:14 Thomas: And it may sound technical. Check me if I'm wrong. It really sounds like the strict scrutiny versus intermediate scrutiny would make a massive difference. Let's say Alabama tries to ban LGBT forums or something. The difference between some higher court applying strict versus intermediate could be pretty huge there, right?

0:25:31 Matt: Yeah, yeah.

0:25:31 Thomas: Could be the whole ballgame.

0:25:32 Matt: And that's what Kagan's point is, that for the future, that we already have perfectly good case law. Strict scrutiny is a perfectly good standard. And there's nothing wrong with requiring the the state to do it in the most narrowly tailored way possible. And if you're going to ditch that, then you're gonna leave all kinds of other openings. And I think that's a great question to ask our guest about what kinds of alternatives could there have been here for

0:25:50 Thomas: So bottom line is they let Thomas write a decision, which is never a good idea. And it's intermediate scrutiny now for this kind of thing. And that's where it stands after this. Yes. For age verification. Yeah.

0:26:02 Matt: And even though there really should be more carefully controlled about how we verify age, you know, again, I have no problem in theory with age verification in some circumstances on some things. But I think strict scrutiny is a perfectly good standard. And I agree with Kagan that it should just be preserved that way.

0:26:16 Thomas: Well, let's talk more about the actual kind of effects of this on the world and on perhaps the porn browsing habits of America. We'll see what else we can get into with our guest Zeev Sanderson. So after the break, we'll get Zeef on the line.

0:26:32 Thomas: This episode is brought to you by Fireflies. Hey, so I've never been a big fan of meetings in particular. Bad meetings can be frustrating, but you know what can be even worse is when you have a really good meeting and everyone's got ideas and things seem promising and you're so optimistic about what you guys are all going to do. And then like no one follows up, someone drops the ball and all that momentum is just like killed. It can really suck the life out of a project. And not to mention, then it calls for another meeting. And if you're not a huge fan of meetings in the first place, you don't have to have another meeting about what went wrong in your meeting. Well, I think you should check out Fireflies. It's the number one AI teammate that transcribes, summarizes, and analyzes your conversations so you can get the most out of every meeting. As someone with some focus issues, There's always been more of an ideas person than the writing and taking notes person. I have needed this all my life, and just now, five minutes ago, technology caught up, and it's a lifesaver. Fireflies is a smarter way to work, helping you to understand what was said, generate personalized notes, find information, take action on next steps, and develop workflows to create internal efficiencies. And here's the best thing. It seamlessly integrates with the tools you and your team already rely on, with integrations across more than 60 different apps. I don't know how many there are, but could it be much more than 60? Like Zoom, Google Meet, Slack, Asana, and so many more. And Fireflies was designed with security in mind, giving you the ability to control who can view, share meeting notes, and even choose where to store your meeting information. And right now, when you sign up for a yearly Fireflies subscription, you get the first two months free. Just go to fireflies .ai slash opening. That's right, two months fee when you go to Fireflies .AI slash opening one more time. That's fireflies .ai slash opening.

0:28:17 Ad: [Ad break 2 — ad music]

0:28:17 Thomas: And now we're joined by Zeev Sanderson, Executive Director of NYU's Center for Social Media and Politics. Zeeve, how are you doing?

0:28:23 Zeve: Good, thanks so much for having me. How are you doing?

0:28:25 Thomas: Doing well. This is an interesting area of study.

0:28:30 Matt: To see some ID. Can you prove your age right now? Yeah.

0:28:34 Thomas: This isn't an adult show. Yeah, this podcast. I'll cut the porn music in the background right there. Is that

0:28:40 Matt: So how did you get into the intersection of tech and politics this way? This is interesting stuff that the center's doing.

0:28:47 Thomas: What they're calling it these days? I'm sorry. Okay, okay, I'll stop.

0:28:50 Zeve: Yeah, there's going to be ample room for jokes during this podcast. Yeah, so essentially, I sort of have two different research agendas, and this sort of sits directly between them. So what is at the Center for Social Media and Politics, I use computational experimental methods to think about how the digital information environment is impacting politics. The other thing that I do is I'm a research affiliate at the center on technology policy. And there I think about bringing the same sort of empirical rigor, but to the study of tech policy, and really thinking seriously about if we're going to pass a bunch of tech policies, what impact do they actually have? Because so often we just sort of go round and round in circles thinking about what's technically feasible and what's normatively we want to do. And then there's not enough work on actually testing the effect. And so this sort of sits squarely, this paper sits squareLY at the center of those two.

0:29:37 Matt: Just for context, apart from what we're going to talk about with Free Speech Coalition v. Paxton, what other kind of major policy issues are you working on?

0:29:44 Zeve: With the Center on Tech Policy, we essentially cover everything. We release an annual report in which we do a landscape of everything that states passed in terms of tech policy over a given year for listeners at home. Maybe they know, maybe they don't. That essentially states at this point are the innovators on tech policy, something that's going to come up a lot when we talk about some of the age verification laws. When it comes to the sort of center on social media and politics, a lot of what we work on are things like content moderation, misinformation, polarization. So issues that definitely are sort of policy relevant, but given a sort of first amendment tradition in the US, they are not actually policy issues because the government in the U .S. can't really pass laws on mandating any content moderation.

0:30:25 Thomas: Well, so we think, I don't know. Yeah.

0:30:27 Zeve: So we think. Evidently, we can pressure other countries over their laws around content moderation but I think it would be legally tough for us to pass any ourselves.

0:30:31 Thomas: Oh, wow. Yeah, well, Matt asked you like, what, what are the things you're studying? When you describe it, I was just thinking, wow, that's just everything now, like, hey, you know, everything going on now, we study all of that, everything important happening, because it's like the intersection of tech and politics to me sounds like, I dunno, it sounds like it could be everything. It must be a very busy area of study for you.

0:30:54 Zeve: Yeah, I'm either the best or worst dinner table guest, depending on who you ask.

0:30:59 Matt: Yeah, you're sounding very happy and upbeat right now, but I imagine there must be some cause for pessimism in some of what you're looking at.

0:31:04 Zeve: Oh, yeah, there's a ton of cause for pessimism. I've actually found this is just sort of a qualitative assessment that this research space ends up getting, I think, people who are biased towards positivity, because otherwise, it's tough to stay in this space for too long.

0:31:17 Matt: Man, I hear that. I hear that. We're here to talk, of course, about Free Speech Coalition v. Pax, in which you did some research on that I found to be, frankly, incomprehensible, but that's only because math scares me. Anything that has to use symbols, like Greek symbols, terrifies me. Just top level, could you kind of give us, before we dive into it, what you found in this research?

0:31:28 Zeve: All

0:31:36 Thomas: And I should say, I love math. So I just want to make sure don't, don't take Matt's, you know, that doesn't represent the show. Matt doesn't speak for the show.

0:31:43 Zeve: Right, no worries. No Greek symbols, but I think we'll get into some of the math.

0:31:47 Thomas: I do hate the Greek symbols. We can unite on that.

0:31:50 Matt: Okay, good.

0:31:50 Thomas: Matt, we can, yeah, we don't like that. Okay, good.

0:31:51 Zeve: Before I jump in, I just want to mention that this is co-authored work, some brilliant co -author on it who have done the bulk of the research along with me. I'm happy to sort of be here today representing the research team and talking about the paper. We were really interested in measuring the effect of the state laws that ended up being litigated in the Paxton case on actual user behavior. One of the interesting things about the ways that these laws were passed were that Good good actor websites, websites that actually wanted to comply with the laws did. And in this case, we looked primarily at Pornhub, which is the largest adult content website in the US.

0:32:25 Thomas: I bet they were thrilled to be in the good actor category for once.

0:32:29 Zeve: Yeah, I mean, you know, what's interesting is that like, they were sort of pressured into becoming the good actor category because of it was the New York Times op eds from a couple years ago that ended up leading credit card processors not to process any payments. So they actually when when it comes to adult websites, specifically platforms, right? Not places that are producing their own content, but platforming content from a community. They're actually one of the best actors when it come to having a robust trust and safety function and trying to get normatively bad content like revenge porn or non-consensual intimate imagery off of their site.

0:33:03 Zeve: And they're a real business. I mean, they're actually a huge business and they complied with these laws. And so in all of the states that passed the laws, other than Louisiana, they actually just blocked access to the website altogether. In Louisiana, they complied through the mechanism that was described in the law, so you needed to verify your age. So we looked at that site, and then what was sort of lucky for our study, but probably bad for the world and certainly for kids, was that the second most popular site, Xvideos, didn't comply with the laws.

0:33:31 Zeve: We think it's because they're based in the Czech Republic, and there's really no sort of legal mechanism that requires them to do so. And so we have this really interesting test case where we can see once these laws passed in the various states, what happened to user behavior when it came to Pornhub, the most popular compliant site, Xvideos, the second most popular site that didn't comply, and then we also looked at VPNs. Just a note before we get into the actual results is that because we didn't have access to the actual browsing behavior, we ended up using Google Trends data as a good proxy. And we do sort of a bunch of analysis in the paper to show that this is essentially giving us the directional signal that we want. But we do use Google Trends data to measure the changes here. And so what do we find? We essentially found quite massive shifts in user behavior. So we found that in the three months after the laws passed in the States, these age verification laws came online, Pornhub searches dropped by 51%, Xvideo searches increased by 48%, and VPN searches increased by about 23.5%. And so you end up seeing what we interpret as evidence of substitution and circumvention,

0:34:40 Zeve: Where either you can substitute a compliant site for non compliant site one to one, or you can just try to circumvent the laws altogether through the use of a VPN. And I think that sort of teaches us a lot about tech policy. But before we get too into the the weeds. I'll sort of pause there.

0:34:55 Thomas: It's it reminds me I mean I I uh I went to business school and a little bit economics training and elasticity of demand is a thing I feel like porn's not one of those things that people tend to be like oh well I guess I just will give that up oh can't access this I'll find something else to do.

0:35:08 Zeve: And What's also interesting, right? I mean, in terms of thinking about who's going to find ways around a law, we don't have this data in the paper because we can't study it directly. But like in all expectation, right, it's going to be like teenagers. They're digitally native. They were raised online, figuring out how to circumvent restrictions online. And unlike adults, they can't actually verify themselves as over 18. So they're even more incentivized to try to do this. For us, really interesting, but quite quite alarming, that you ended up having this sort of regulatory regime that shifted user behavior towards less regulated, potentially sort of more dangerous parts of the internet. And in addition to that, I mean, you said that you went to business school, right? There's also this sort of like totally perverse economic impact where a company is helped by non -compliance with the law.

0:35:55 Thomas: And not the good kind of perverse.

0:36:02 Zeve: Exactly. Right. There we go. More jokes.

0:36:06 Thomas: It's like, I'm so sick of this, please stop. But totally, it's like it's incentivizing like black market times. I mean, that's classic, just econ one on one stuff. I mean, you're incentivizing people to worse behavior. And first off, do you have any sense of how much this was kids versus adults? I imagine a lot of people, especially in those areas, might just see like, oh, I don'tt want to tell the site who I am, you know, regardless of how old they are and they might not want to do it. But also if it is overwhelmingly kids, people under 18, I guess, that are going to be circumventing this rule, then like you say, you're sending them that more impressionable group to a more illegal place, which doesn't seem great.

0:36:43 Zeve: That wouldn't seem great. And that wouldn't be great. We can't directly observe this. Google Trends data is broken down by state and by over time, which is great for us to be able to measure the effect of these laws across states, right? These laws actually were introduced at different times. So the data is really sort of useful for that type of analysis, but we don't have any demographic data on who actually is reflected in those Google Trends data. In addition to that, there are other ways that we could try to study actual kids' browsing behavior. I come from an academic context. We have ethics review boards.

0:37:19 Zeve: I can't imagine being able to get that study design, pass an ethics review board, and for very good reason. Scholars often don't want to do a thing that I think it's important for scholars to do, which is just sort of bring the, we're people living in the world lens to a question. And like, as people living In the world and all expectation, what we would probably see both kids and adults shifting their behavior in the way we described kids, because they literally can't age verify, and adults likely because they don't want to verify. And then again, remember, in other states, Pornhub pulled out entirely of those states. And so someone couldn't even visit that site if they wanted to without use of a VPN. And so again, it's not even that they're incentivized to, they're forced to look for substitutes.

0:37:22 Thomas: Hey, kids, look at this. Yeah, right.

0:38:04 Matt: Do you think that was the... The joke is right there for the pull-out method, obviously. No, no. But I just wonder... I'm not supposed to make these jokes.

0:38:06 Thomas: No, we're not. We're not doing it. There's no joke. Yeah. I was such an adult during that, Matt. He wants to ask, is the pullout method going to work? Like, is that a guarantee? Yeah.

0:38:14 Matt: I don't know how much you want to comment on the policies here, but, or is that intended? Was that, was that something that maybe the legislature?

0:38:21 Thomas: Was that a protest thing? I can't remember.

0:38:23 Zeve: So Pornhub actually put out a pretty interesting blog post on this and essentially said, look, we'll comply with laws. We are within the world of adult content, sort of a good actor. However, we want to be able to do so in the most privacy preserving way possible. And in addition to that, they don't sort of want to to be on the hook for needing to do the verification themselves and then store that verification data. So think about one sort of mechanism for verification where Pornhub has to internally have some system whereby they authenticate you likely via an ID and then store the fact that they verified you, Matt, as somebody who visited. And then also it's likely going to be tied to your IP address, which means that they're going to have your watch history. Can you imagine what that sort of like data, what that leak would look like if there were a hack? So they just don't really want to be on the hook for that. And that's totally understandable. And so what was interesting is that what Pornhub made clear by staying in Louisiana, but exiting the other markets, was that they were willing to comply so long as they thought that the age verification mechanism was privacy preserving enough.

0:39:33 Matt: My question was if the policies were intentionally trying to get these companies out of these states.

0:39:38 Zeve: So the short answer is like, it really depends by state. I think in all states right now, we're seeing a lot of momentum around tech policy focused on protecting children. Directionally, that's a very, very good thing. In addition, you see some states, especially conservative states, have a politics that wants in as much as possible to do things like limit access to adult content. And that's long been the case. And I think, in some instances, we probably saw the conflation of these sort of two policy objective through laws that would make it so that certain companies maybe just exited the market entirely. That being said, I would say it's bad for those markets, for the compliant firm to exit and all the non -compliant firms to stay. I don't, to be honest, really know what state lawmakers were exactly after.

0:40:27 Zeve: But as an overall goal, trying to make it such that kids have less access and And especially less accidental access to adult content is like certainly a good policy objective.

0:40:39 Matt: So we've been talking about the effects on the market and how they changed and how essentially the consumers go to other places. But what about the effect on the consumers? Because obviously, you know, I'm here in a college town just last night. I watched somebody get turned away for trying to use a fake Tennessee ID, and that's been a longstanding college town tradition of just buying a fake ID. And getting a VPN is a lot easier than getting a fake id.

0:40:59 Zeve: Yeah, getting a VPN is very easy. What's interesting about a VPN, is once you download it, you have it forever.

0:41:04 Thomas: I wish we had a VPN sponsor for this episode. Gosh, I'm going to talk to the ad people.

0:41:09 Matt: I mean, I use a VPN every day just because I'm concerned about my own privacy, and it certainly is professional.

0:41:12 Thomas: Always looking at porn, everyone. That's why.

0:41:14 Matt: Yeah, that's right. No, I'm using it at work right now just because I think it's the best thing to do. But I just was wondering, you were able to kind of map that with Google Trends searches. There's no other way to know, really, if consumers are using them, right.

0:41:24 Zeve: So Google Trends searches tell us, essentially gives us a useful proxy for interest in VPN usage. When it comes to actual VPN usage, we can end up trying to sort of like triangulate various public and private data sources. I mean, you have VPN companies themselves report on download numbers. If I remember correctly, one of them sort of reported pretty high uptick in downloads after the Texas law came online.

0:41:50 Zeve: We can't, though, unfortunately, directly observe it, at least in this study.

0:41:50 Thomas: What else did you explore? Is that the main takeaway here is incentivizing the bad behavior. Was there anything else that we haven't touched on in the study?

0:42:02 Zeve: Yeah, I think this is definitely true of this particular tech policy area, kids and adult content, but I think it's true broadly right now across a number of tech policy areas, is that we essentially attempt to solve insert societal problem at the level of tech policy. So if you abstract away from the particular question of how do we limit access for children to adult content online, when you sort of listen to people talk about the area, what we're really sort of concerned about is the unhealthy intimate relationships that end up being downstream, we think, of access to and consumption of adult content too early. What it seems like right now is our main way that we're thinking about using a sort of policy mechanism to solve that is this sort of like very crude attempt at age verification on adult content. But it's not part of this sort of like broader, more comprehensive policy package with which to think about how do we do this? We need better sex education. We probably want the federal government who used to study the impact of education on various outcomes to be studying how to do this better. Instead, we just over -rely on this very narrow, very observable thing, which so often is tech. And I think that when it comes to a lot of areas, but especially thinking about how do we have a society where we're raising healthy, successful, well -adjusted kids, we are far too over -reliant right now on tech policy

0:43:27 Zeve: As the sort of mechanism to get there.

0:43:29 Matt: I really appreciated that about your research that you mentioned specifically in this paper about the things you were just talking about. That was great and really fleshed out the human part of it.

0:43:36 Thomas: I mean, so much that I was going to comment earlier that I think there's a question or discussion about like, what were they trying to do with this policy? And it's like, so often, I don't even know that we can draw a straight line from like, logically, here's what the Republicans want to do. And here's how they're trying to deal with it. You know, like, very often, it's way more convoluted. And it'S more about like like signaling something, signaling some morality. And what you just said there also, not to cross the streams, but it made me think like as a parent, you know what would really help is if people only had to work one job to make a living to support their family. Because a whole lot of this is who has the time to be watching over their kids' digital habits enough to be able to solve this with like means that are more, I guess, healthy. Like that takes a lot of work and it takes a Lot of vigilance as a parents. I can tell you I'm not they're not my kids aren't that age yet, but it takes a lot like so many things like housing policy, like like even the people who want us to like be having more kids as a society. The thing we need to solve is income inequality and the fact that wages are so low because so much of that really needs to be like having the time to supervise your kids in a healthy way.

0:44:44 Zeve: Sort of a truism in studying public policy, which is like every policy is a family policy. And I think that that's especially true here. The other sort of interesting thing, and we didn't explore this directly in the paper, and I hate to be the guy who makes everything into an AI conversation, but I thought there was also this like really interesting AI extension to this, which is we're really focused right now at the state level on consumption of adult content around children. The thing, to be honest, that's sort of keeping me up at night, sort of piecing together some of what I see as intellectual currents across a few different literatures is the use of the parasocial relationship formation between children and chatbots, especially given we know things like kids are spending a lot less time outside, a lot less time with their friends. And so for me, once you add in the potentially sexually explicit angle to that, it just becomes even scarier. Again the thing that I'm a little afraid of here is here's this area we passed these laws that our paper showed were like at best ineffective and at worst actually made the problem worse and it sort of feels right now like a lot of folks have sort of like wiped their hands of it and said great we've done that let's move on and this is the moment where we need the most thoughtful the most intentional the most comprehensive approach to a number of these issues and I think the fact that we took such a narrow approach on this issue is something that just, I think, concerns me broadly about the direction of the tech policy conversation.

0:46:09 Matt: I really appreciate what you said about the need for the wider... I mean, the society, of course, is just so unhealthy about sex and especially about intimacy, which is really what a lot of this should be about. But in terms of out-of-the-box thinking, is there some other tech solution that would screen these is better? Is something like what Louisiana is doing a better compromise than just sort of the straight up age verification? Or is there some other solution that the policymakers haven't considered? Right.

0:46:29 Zeve: Well, so Louisiana actually is just doing age verification. It's just that the sort of way in which they're doing it is more privacy preserving.

0:46:36 Matt: That's what I meant. Yeah. It's more of a compromise.

0:46:38 Zeve: There are a bunch of ideas out there. I mean, technically, you can just do age verification a lot better. None of the states considered using sort of zero knowledge proofs as one way to do it. I just realized in the last three minutes, I've mentioned both AI and blockchain, which is unfortunate for me.

0:46:52 Thomas: What's zero knowledge proofs, though?

0:46:54 Zeve: It's essentially a way of being able to prove a statement is true without doing anything other than proving that statement is true. So I could prove that I'm under or over 18 without giving up any personally identifying information about myself. And there's sort of cryptographic ways of doing that. That becomes this really powerful mechanism to do things like age verification because you don't risk privacy at all. And if users knew that it was an environment in which privacy wasn't risked, perhaps they would be more willing to stay on sites that did comply.

0:47:21 Matt: You mean like name your favorite episode of Seinfeld or something? Like what is a good example of this? It dates you.

0:47:23 Thomas: So, yeah, It's a cryptography thing, right? But I do like the idea that's like, write this in cursive or something, you know?

0:47:28 Zeve: Yeah,

0:47:29 Matt: Oh yeah. I guess I'm missing it.

0:47:33 Zeve: It's cryptographic, right? Literally, it's just like solving a math equation to prove that a thing is true. And there are various ways of doing that in order to do some form of verification around an identity characteristic when you don't want to give up somebody's, or you don't want to reveal someone's broader identity. And there's been a lot of like technical and policy work here that the states essentially just like didn't consider at all. California is considering something that looks to try to do age verification at the device level, rather than sort of via the browser or at the website level, that also seems more promising. Apple has a good white paper on it. So there definitely is a technical component to this that like, oh yeah, maybe we can do like age verification better. There are other pieces to it where a lot of people have like talked about various tools to give parents a lot more transparency into what their kids are doing online. I sort of have mixed feelings about that or rather think that the devil will be in the details of exactly how that's accomplished that's like a long way of saying like there are definitely some things that we could explore but there's like not going to be a silver bullet for anything here I should also mention that you mentioned sort of uh we'll call it like analog age verification mechanisms there was an adult video game in the late 80s called leisure suit larry that actually had a version of this are you all familiar with it

0:48:45 Matt: Remember that. I don't remember the verification, but I remember the game.

0:48:48 Zeve: So they essentially asked like political knowledge questions um in order to in order to try to weed out the children

0:48:53 Thomas: Back when it wasn't, you didn't have Google or Wikipedia, so it's like a little harder to, yeah.

0:48:58 Zeve: Exactly so it was like my favorite was like who is Spiro Agnew, Nixon's former Nixon's VP. And so you probably ended up letting in some very precocious teenagers and kicking out some poorly read adults.

0:49:12 Thomas: Well, they're good. They deserve it. You know, let's reward civic knowledge. I think we should still do it. I was going to say, I didn't know that game, but I do remember back in the day, some of the earliest software to try to unlock parts of it or something. You'd have to answer questions from like the manual. It'd be like on the manual, you know, what page, whatever. And it's like, damn it. I only have the, you know, disc. I don't have the manual yeah. Yeah.

0:49:26 Matt: From the book. Yep. Yep? You think I can hold on to a manual? Yeah.

0:49:35 Zeve: Oh, that's funny. It was like the written version of like the driver's test.

0:49:39 Thomas: Kind of. Cause it was like, that proves you actually bought it. Cause you know? Cause if you just had the, if someone just copied the disc for you. Yeah, yeah. Stuff like that. And I try to guess and is like impossible.

0:49:42 Zeve: Right. Oh right. Right, right. Oh of course, of course. Of course. Yeah. Yeah, exactly.

0:49:43 Matt: Yeah. Third word in paragraph two on page 54, you know, we are really dating ourselves. All right. Okay.

0:49:52 Thomas: I'm 38. I've 38 years old. Not just to be clear. I don't know who Spiro Agnew is. I kind of remember Nixon something VP. I dunno.

0:50:01 Zeve: The other funny one was that they had one, which was OJ Simpson is, and this is in the late eighties. And I kid you not, one of the wrong answers was under indictment.

0:50:11 Thomas: Way. Wow. Weird that you would have been able to age out of porn. Then you're like, ah, damn, I guess because OJ Simpson got indicted, then I know I guess I'm too old for porn. I know this is weird.

0:50:28 Ad: [Ad break 3 — ad music]

0:50:28 Zeve: What's also really interesting about this policy space around age verification is that my assumption would have been it was just sort of the like territory of conservative states in the US, but Europe has gotten into it. There are now a number of countries in the EU that are requiring age verification. And in some of those countries, the compliant adult firms are either age verifying or thinking about exiting. So it's pretty interesting to actually see that this model is one, spreading, and two, it sort of has like a purchase in the sort of policy debate beyond just sort of a right wing conservative politics.

0:50:39 Matt: Did any of the states that passed these things work with you or centers or researchers like yourselves to try to come up with the best solutions or were they just doing the blunt force age verification?

0:51:12 Zeve: So they didn't work with us. What's interesting is that I'm sure this is gonna come as no surprise to you. But once a state passes a law, there aren't super strong political incentives to change that law. For the states that already have it on the books, we're not seeing much desire to modify their laws as a result of this paper. I've chatted, I know, and I think some of my co-authors have as well, with some policymakers in other states that are considering similar laws. And there we've seen them think about, oh, are there better mechanisms that we can use in order to try to circumvent some of these issues? We sort of touched upon here, if there's one, any friction, and two, any concern around sort of privacy violation, then we're likely going to see what we saw in our paper, which is circumvention and substitution, regardless of whether states use sort of best in class privacy preserving age verification technology.

0:51:21 Thomas: I think what you said a moment ago though. I mean, I guess I was a little dismissive of these, but I do think there's a lot of people with concerns about this. It does seem to be pretty exclusively red states that did this thing, right? It's not like crazy to be concerned about kids being able to access porn. I think there's just a sense that I have that like that just wouldn't work. I guess haven't really thought about it that much. My kids are not quite the age, so I'm sure I'll be more concerned about this stuff in a few years. But I'm more just wouldn't bother with laws like those because I just don't think they work. And I wonder if some of these solutions you're describing that sound a little, I don't know, better. I don' know, maybe I would support that. I do feel like with kids, like maybe verifying at the device level makes a lot of sense to me. That seems like it would make things so much easier because there's any number of apps, you know, any number of things they could be doing where if it just has some way to verify with the device itself that it can be on there. I just feel like that's a way better method of doing this.

0:52:54 Zeve: It definitely is a better method of doing it. One of the things that's actually quite exciting in terms of this space in particular is that like Apple has a good white paper on how to do it. You have actual device makers seem to be on board with this being an area that they're willing to consider pursuing and developing it. I think in all likelihood, that's where we're going. And I think that that's going to be a really positive place to end up at. I think in the meantime, we're going to end up with really limited and potentially counterproductive attempts at, again, solving a problem that is very important and is very understandable of why policymakers want to solve.

0:53:28 Thomas: Well, any other thoughts, anything we didn't get to that you want to make sure to say?

0:53:31 Zeve: We didn't get into much of the math, but that sounds like that's fine.

0:53:34 Thomas: That's because Matt has a loaded gun that he's pointing under the desk at me, my direction from across the country. No, that's great. Awesome. Is there anywhere you want to send our listeners to learn more about you or your work or anything at all?

0:53:38 Zeve: You can visit the websites for the two centers that I mentioned that I'm a part of, the Center for Social Media and Politics at NYU, that's csmapnyu.org, and then the NYU Center on Tech Policy, Tech Policy NYU.

0:54:00 Thomas: Well, Zeev Sanderson, thank you so much for joining us today.

0:54:03 Matt: Really interesting. Thank you.

0:54:03 Zeve: Thanks so much for having me.

0:54:23 Thomas: They're calling it porn.

0:54:26 Matt: Yeah, long dong silver,

0:54:30 Thomas: Is the pullout method going to work?

0:54:33 Matt: Stroking out comma I dissent.