California’s A.B. 3080 and Threats to Our Rights to Free Speech and Privacy

June 26, 2024

Unfortunately, a new censorship bill passed the California Assembly in May. The bill, A.B. 3080, includes a requirement for certain websites that display sexual content to verify the ages of their users to ensure they’re adults. In so doing, it joins a slew of other unconstitutional efforts to attack our ability to access sexual content online.

Supporters of A.B. 3080 purport to be well-intentioned. As Assemblymember Rebecca Bauer-Kahan said, the bill is about the “safety of our children” and protecting them from “dangerous content on the internet.” But no matter A.B. 3080 supporters’ intentions, the impact of the bill would be devastating. In the words of Ricci Joy Levy, Woodhull Freedom Foundation’s President and CEO, “though ostensibly well-intentioned, [the bill] is unconstitutional.”

Firstly, the bill infringes on critical human rights, including our right to access legal speech, like pornography, without government interference. Our access to legal speech is constitutionally protected, and vague or overbroad restrictions on speech are impermissible, as they can risk the “chilling” of free speech. A.B. 3080’s definitions of speech that fall in its scope are concerningly murky. It defines “pornographic internet website” in part as a website where the owner, for commercial gain, “knowingly publishes sexually explicit content.” But what’s “sexually explicit” in the eyes of the Assembly? Any “visual imagery” of people engaging in sex acts ranging from masturbation, intercourse, oral sex, or acts that fall within a catch-all of “overtly sexual conduct” that, as a whole, “lacks serious literary, artistic, political, or scientific value.” This definition is of little help; what you might think has serious value might, to enforcers of the law, be “sexually explicit” and within the scope of A.B. 3080. For many online, this risk may lead to stopping all content that could conceivably fall within this debatable understanding of “sexually explicit” to avoid repercussions.

Secondly and relatedly, the bill infringes on our right to privacy, with significant risks. Electronic Frontier Foundation (EFF) writes that “there’s no way to check ID online just for minors without drastically harming the rights of adults to read, get information, and to speak and browse online anonymously.” People who meet the minimum age requirement would need to prove that they do. It could involve invasive burdens such as checking their digital ID or uploading other personal information. As Allison Grossman, PhD, Woodhull’s Senior Policy Analyst, recently explained in Fact Checked by Woodhull, online ID checks aren’t a momentary display like flashing your ID at the liquor store cashier; they involve uploading data-laden documents to the internet. This creates what EFF describes as a “lasting record” of the user’s visit. And of course, the data from IDs or other age verification documents is vulnerable to breaches.

We at the Woodhull Freedom Foundation vehemently oppose A.B. 3080 and efforts to restrict our access to sexual content online. Our rights to free speech and privacy are fundamental constitutional rights, and age verification bills like A.B. 3080 endanger all of us.