The Failure of House Bill 278: Kentucky’s New Age Verification Law is the Product of Legislative Scheming, Impetuousness, and Naivete

Blog Post | 113 KY. L. J. ONLINE | October 1, 2024

The Failure of House Bill 278: Kentucky’s New Age Verification Law is the Product of Legislative Scheming, Impetuousness, and Naivete

By: Steven Dabney, Staff Editor, Vol. 113 

In 2023, Louisiana became the first state to enact a law requiring adult websites to verify users’ ages before granting access to explicit materials.[1] This marked the start of a major trend amongst state legislatures across the country, as eighteen other states have passed similar bills within the past two years.[2] Kentucky enacted its own age verification law on July 3, 2024, adding six new sections to KRS Chapter 436.[3] Under the new law, anyone attempting to access an adult website must provide a state-issued ID, proving they are at least 21 years of age, to the website provider.[4] The law also established a civil cause of action upon which plaintiffs may recover “. . . ten thousand dollars ($10,000) per instance that the covered platform failed to perform age verification to restrict the minor’s access to matter harmful to minors.”[5]

House Bill 278, titled “AN ACT relating to the protection of children,” was passed by the Kentucky General Assembly in the final moments—near midnight—of the 2024 legislative session.[6] Josh Calloway, a member of the Kentucky House of Representatives for the 10th District, claimed credit for pushing the bill through.[7] According to Calloway, efforts to pass House Bill 278 had stalled entirely prior to March 28—the night before the veto break.[8] The bill “was dead.”[9] The reasons for the bill initially stalling in the Senate are unclear, however, the deadlock was not permanent. The bill was revived only after Calloway brokered a controversial informal deal with other members of the General Assembly to pass both House Bill 278 and Senate Bill 2, a priority school safety bill, in exchange for Calloway agreeing to not call his amendment for Senate Bill 2.[10] The proposed amendment, if raised, would have likely delayed the vote on Senate Bill 2 to the General Assembly’s final two days after the Governor’s veto period.[11] Any bills passed on those days could be vetoed without an opportunity for legislative override by the General Assembly’s Republican majority.[12] As a priority bill at risk of veto by Governor Beshear, Senate Bill 2 needed to be passed, if ever, on the night of March 28. Calloway recalled his negotiations with Republican leadership: “I kept being asked, ‘please, will you not call your amendment?’ . . . Finally, about eight o’clock [on March 28] . . . I was taken off the floor and asked, ‘What would you have to get in order to not call your amendment?’ I said, ‘House Bill 278.’”[13] Just before midnight, the General Assembly passed both Senate Bill 2, without Calloway’s amendment, and House Bill 278.[14] Floor arguments were constrained to just three minutes for each side, drastically limiting legislators’ ability to meaningfully discuss the contents of each bill[15]—and it shows. 

As of September 2024, based on web traffic, Pornhub is the most popular adult website in the world—the industry leader of platforms affected by this legislation.[16] Aylo, Pornhub’s parent company, has criticized existing age verification laws like Kentucky’s for being ineffective and dangerous.[17] They claim to support age verification generally, so long as the laws are carefully drafted to facilitate effective enforcement and are tailored to preserve user safety and privacy.[18] Aylo contends that existing age verification laws, with the exception of Louisiana, dangerously require the hundreds of thousands of adult website providers to collect highly sensitive personal information from their users while providing no safeguards for circumventing data breaches.[19] Under the Louisiana law, age verification occurs through a secure third party service, minimizing the risk of users’ data leaking from unsecure servers.[20] In all other states, Pornhub has elected to simply bar its users from accessing the website rather than attempt operating in compliance with the law, subjecting itself to potential liabilities.[21] Aylo advocates that the “best solution to make the internet safer, preserve user privacy, and prevent children from accessing adult content” is to implement local, on-device age verification.[22] 

While Aylo has terminated its operations in most states requiring age verification, the vast majority of its competitors’ websites remain accessible without any verification processes. Aylo argues that, “unless properly enforced, users will simply [continue to] access non-compliant sites or find other methods of evading these laws.”[23] Pornhub is currently one of just a few adult websites operating in compliance with Louisiana’s law.[24] Since implementing the required verification procedures, the website’s traffic has plummeted by approximately 80%.[25] Aylo contends that this drop does not reflect less users searching for adult websites, rather, these users are diverting to “darker corners of the internet that don’t ask users to verify age, that don’t follow the law, that don’t take user safety seriously, and that often don’t even moderate content.”[26] In effect, age verification laws are not bolstering “the protection of children”[27] as the claim; they are directing children—and adults—to websites that do not comply with the law.

[1] Josh Large, US Age Verification Laws: Analyzing the Spread and Impact, IPVanish (Aug. 9, 2024), https://www.ipvanish.com/blog/us-age-verification-laws/.

[2] US State Age Verification Laws for Adult Content, The Age Verification Providers Ass’n, https://avpassociation.com/4271-2/ (last visited Sep. 23, 2024).

[3] Id.; H.B. 278, 2024 Gen. Assemb., Regular Sess. (Ky. 2024).

[4] James Pilcher, Large Adult Website Shuts off Kentucky Users After New State Law Requires Age ID to Login, WKRC (Jul. 26, 2024, 4:03 PM), https://local12.com/news/local/large-adult-website-shuts-off-kentucky-users-after-new-state-law-requires-age-id-to-login-porn-pornhub-personal-information-security-risk-hackers-verification-predators-offenses-protection-safety-tech-computers-phones-cincinnati.

[5] H.B. 278, 2024 Gen. Assemb., Regular Sess. (Ky. 2024).

[6] Austin Horn, Who Are the ‘Liberty’ Republicans in Kentucky Politics? What Do They Want?, Lexington Herald Leader (May 20, 2024, 1:03 PM), https://www.kentucky.com/news/politics-government/article288555164.html.; McKenna Horsley, Sarah Ladd & Liam Niemeyer, Kentucky Lawmakers Break for Veto Period Leaving Anti-Diversity Bill Dead in the Water, Kentucky Lantern (Mar. 29, 2024, 2:10 AM), https://kentuckylantern.com/2024/03/29/kentucky-lawmakers-break-for-veto-period-without-moving-anti-diversity-bill/.

[7] Horn, supra note 6.

[8] Id.

[9] Horn, supra note 6.

[10] Id.

[11] Horsley, supra note 6.

[12] Id.

[13] Horn, supra note 6.

[14] Horsley, supra note 6.

[15] Id.

[16] Top Websites in Worldwide (Adult Industry), Semrush, https://www.semrush.com/trending-websites/global/adult (last visited Sep. 23, 2024).

[17] Pilcher, supra note 4.

[18] Id.

[19] Id.

[20] Large, supra note 1.

[21] Id.

[22] Pilcher, supra note 4.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] H.B. 278, 2024 Gen. Assemb., Regular Sess. (Ky. 2024).