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If DOJ Needs More Powerful Porn Laws, Congress Should Pass Them

Both carrots and sticks are available to keep Big Porn from having access to your children.

(By Stenko Vlad/Shutterstock)

Pornography has been a hot topic in the news recently, and not justbecause of coronavirus. Over the past several months, there has been a growing chorus of leaders calling for an increasingly out-of-control porn industry to finally be held accountable. And as more evidence comes in, it could not be clearer that porn use is indeed out of control.

The statistics are alarming. Pornography is now more available and popular than ever in history, thanks in large part to the internet. In 2018, the world’s largest porn siteregistered an average of 92 million visits per day and 5.5 billion hours viewed over the course of the year. In addition to adults, it is making its way into the hands of ever younger viewers:studies have found that large majorities of today’s young adults first encountered porn as adolescents, and that about half of college-aged males first viewed porn before age 13. And the porn of today is far more graphic and violent than in the past: one analysis of online porn content found that 43 percent contained what was characterized as “visible aggression.” 

It should be no surprise then that more leaders are becoming concerned, and indeed, the Department of Justice has now received a number of letters urging action on the issue. In December, four Members of Congresssigned a public letter calling for Attorney General William Barr to enforce existing obscenity law. In January, Professor Robert George of Princeton Universitysent his own letter calling for the same. Meanwhile, behind the scenes, several conservative groups (including my own, the American Principles Project) have actively pushed DOJ to do more to protect children from online pornography.

Barr, for his part, is clearly sympathetic to efforts to protect children and crack down on the porn industry. In a Januaryinterview with the Jewish Press, he conceded, “Any young kid surfing the Internet today can come across some gross stuff, and so-called parental controls aren’t really working.”

However, Barr went on to imply that the DOJ doesn’t have the adequate tools to take on this fight and that self-regulation by the private sector or legislation from Congress would likely be required.

This shouldn’t have to be the case. Current law (18 U.S.C. § 1470) does prohibit the knowing distribution of obscene content to children, and this statute could (and ought to) be applied to porn sites. If such a site makes itself available to the public at large and fails to put any sort of age verification system in place, thus allowing young children unfettered access to its obscene content, then it is technically committing a crime — the same as if an alcohol distributor sold liquor to a minor without checking his ID. However, unless law enforcement is willing to act, the law itself has no teeth.

Therefore, to spur DOJ along, Congress should take action to unambiguously prevent porn sites from providing access to children. There are a couple different ways it could effectively accomplish this—using either a carrot or a stick approach.

The “carrot” would be making Section 230 immunity for porn sites conditional on the implementation of age verification. For those unfamiliar, Section 230 of the Communications Decency Act provides a special immunity from civil liability for “interactive computer services,” which are better understood as websites that rely on user-generated content. That includes Big Tech platforms like Google, Facebook, and Twitter, but it also happens to include the vast majority of free access porn websites. Some of the most trafficked porn sites in the world rely almost exclusively on user-submitted videos, and are thus currently immune from civil liability for the content posted on their platforms. Losing this immunity would destroy their business model, and thus conditioning the immunity on age verification would be a powerful incentive.

On the other hand, a “stick” approach to protecting children would be to strengthen the current law mentioned above. Congress could do this by formally identifying online pornography as obscenity, imposing specific fines or other criminal penalties on porn sites that continue to knowingly transmit obscene content to children, and directing DOJ to form a task force that would actively pursue charges against porn sites that continue to violate the law.

If porn sites suddenly felt DOJ breathing down their neck and thought they were in legal jeopardy, they would have no choice but to adopt their own age verification system for users just like any other online merchant that offers legally age-restricted goods or services. The result of this would be a cleaner and safer “zoned” version of the Internet where pornography remained behind closed doors, while still allowing those of age who wanted to visit the web’s seedy underbelly to do so.

Regardless of which approach is ideal, the current status quo of widespread porn availability for children is abhorrent and unacceptable. If AG Barr’s DOJ needs further help in prosecuting pornography sites which maintain this status quo, Congress should do everything in its power to provide it to them. No more excuses for inaction. It’s time for our leaders in Washington to act.

Terry Schilling (@Schilling1776) is the executive director at American Principles Project, a conservative nonprofit dedicated to putting human dignity at the heart of public policy.

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