In the wake of recent allegations against Pornhub and its parent company Mindgeek, senators from both parties have introduced a new bill that would impose sweeping new regulations on online sites, platforms, and apps that host adult content. Though the bill is meant to prevent exploitation and trafficking, critics argue that the changes would create significant new risks and costs both sex workers and the fewer remaining sites that would then host them.

Sens. Ben Sasse (R-Neb.) and Jeff Merkley (D-Ore.) on Friday introduced the Stop Internet Sexual Exploitation Act (PDF), which they described as "groundbreaking legislation that would require all online platforms that host pornography to put in place critical safeguards to protect Americans from sexual exploitation online."

The bill creates sweeping verification guidelines for any site that hosts adult material: any user who uploads material to such a site would have to verify their identity with the site, and every single video posted would have to come with a signed consent form from every individual who appears in the video. All pornography platforms would also be required to disable downloads of videos they host.

Sites would also be required to post instructions for how to have a video removed from the site for any individual who did not consent to appear in a video and wants it taken down. Additionally, platforms would be required to operate a 24-hour hotline for individuals and law enforcement to use for requesting takedowns, and videos flagged to that hotline would have to be removed within two hours of the call. Anyone who indicates to a site owner that they do not consent to appearing in a specific video would also have to be added to a database that effectively makes a "do not upload" list, and any new material would have to be checked against that list before appearing on a platform.

The bill would make the Department of Justice responsible for making rules about the do-not-include database, and the Federal Trade Commission would enforce the rest.

The deluge

The senators' press release about the bill specifically cites a recent New York Times report by opinion columnist Nicholas Kristof as one of their motivations for writing it. The story featured interviews with several women who said that videos of them were uploaded to the site without their knowledge or consent when they were children or teenagers and said those videos of their abuse kept being reuploaded to the site for years despite their repeated takedown requests.

Advertisement

"The posting of intimate photos and videos without participants' consent is a massive invasion of privacy that drives shame, humiliation, and potentially suicide," Sen. Merkley said. "While some online platforms have recently announced steps to change some practices, much more needs to be done."

Where Merkley stayed relatively vague, Sasse straight-up named names. "For years, Pornhub and its parent company Mindgeek monetized rape, abuse, and child exploitation," Sasse said. "While these suit-wearing traffickers got rich, their victims have lived with the pain and fear. That has to end now. Our bill is aimed squarely at the monsters who profit from rape."

The Times published Kristof's story on Friday, December 4. By that Sunday, both Mastercard and Visa said they were investigating Pornhub and Mindgeek. By the next Wednesday, Pornhub blocked all uploads from unverified users and downloads from almost everyone. Nonetheless, both Visa and Mastercard stopped accepting payments for Pornhub by Thursday, and by the time the Pornhub story was 10 days old, the site had begun a massive purge of its videos. It hosted roughly 13.5 million at the time the New York Times story went live; it now hosts fewer than 3 million.

Sasse's office seemingly had some kind of action against Pornhub in mind before the site began to face such widespread scrutiny: the senator sent Attorney General Bill Barr a letter way back in March asking the DOJ to launch an investigation into Pornhub, based on similar allegations to those in NYT piece, arguing that "publicized cases clearly represent just the tip of the iceberg of women and children being exploited in videos on Pornhub."

Intention vs. outcome

The intentions behind the senators' bill are good—as a society, we should absolutely be doing what we can to eliminate exploitation not only of minors but also of adults who do not fully consent to participate in sex work, including pornography. Advocates for sex workers, however, have pointed out that the language in the bill is vague and introduces new risks for performers.

Ana Valens, who covers adult entertainment issues for the Daily Dot, summarized many of the risks in a thorough Twitter thread. First, Valens notes, the definition of what entities are covered under the bill is extremely vague: a platform that "hosts and makes available to the general public pornographic images" could cover Pornhub and Mindgeek's other sites, yes, but also anything from OnlyFans to more general-purpose sites such as Patreon, Reddit, or Twitter. The liability and cost involved in meeting the bill's terms would likely cause most sites to simply ban the sharing of adult material rather than spend the effort on compliance.

Advertisement

The identity verification requirements also place risk on performers, Valens notes. The database not only sets up an all-or-nothing system, where individuals either must accept appearing in all adult material or no adult material, but also databases get leaked, hacked, and breached all the time, and performers would be forced to put a great deal of trust in the platforms that maintain those databases not to leak their most personal of personal information. In short, Valens concludes, the bill "creates impossible expectations and standards, doesn't solve online sexual exploitation, and instead creates an incentive to pull adult material from the web altogether, either via NSFW content purges or indie sites closing down."

Critics are not just working off of hypotheticals; we've seen similar things happen before. In 2018, a controversial pair of bills known as SESTA/FOSTA became law. The bills, fully called the Stop Enabling Sex Traffickers Act and the Fight Online Sex Trafficking Act, carved out a narrow exception in Section 230 that eliminated legal immunity for sites where user-generated material includes content promoting or facilitating prostitution.

SESTA/FOSTA was meant to address sex trafficking in the wake of the Backpage takedown. After it became law, however, legitimate sex workers lost access to the platforms where they advertised or worked. Platforms such as Craigslist and Reddit immediately nixed sections of their sites associated with certain transactions.

Sex work advocacy groups have also expanded their own studies of the aftermath of SESTA/FOSTA, and in December 2019, House and Senate Democrats introduced a bill that would have required the Department of Health and Human Services to study its effects.

"Sex workers are disproportionately women of color, transgender, and are by definition the most marginalized in our society. They don't have people chasing their boats. They don't have people seeking their contributions," Rep. Ro Khanna (D-Calif.), said at the time he introduced the bill. The proposal would have studied the effect on homelessness rates, exploitation, mental health, and negotiation ability of sex workers.

Sen. Elizabeth Warren (D-Mass.), who voted in support of SESTA/FOSTA in 2018, co-sponsored the Senate version of Khanna's bill, saying at the time, "As lawmakers, we are responsible for examining unintended consequences of all legislation, and that includes any impact SESTA-FOSTA may have had on the ability of sex workers to protect themselves from physical or financial abuse."