US Federal Age Verification on the Horizon – the SCREEN Act

For those of you who have been counting, as of this writing, there are now over 20 different enacted and proposed state laws in the United States requiring age verification for online content, particularly concerning adult entertainment websites. The sheer volume of these laws has been exhausting to the adult entertainment industry. Unfortunately, the adult industry has a new looming potential threat in the form of a United States federal law related to age verification.

The Shielding Children’s Retinas from Egregious Exposure on the Net (SCREEN) Act, is a legislative proposal introduced by Senator Mike Lee (Republican-Utah) aimed at protecting minors from exposure to online pornographic content. The act mandates that commercial pornographic websites implement robust age verification technologies to ensure that users are not minors, thereby preventing children from accessing harmful material.

Much like the state age verification laws that the adult entertainment industry have come to know, the SCREEN Act requires all commercial pornographic websites to adopt age verification technology to ensure a child cannot access its pornographic content.

The SCREEN Act Summary

Age verification requirements include:

• Prohibition on simple age attestation (i.e., simply entering in a birthdate);
• Requires IP address verification and public transparency of the process;
• Allows companies to choose verification measures and contract with third parties;
• Implements data security requirements;
• Prohibits companies from collecting unnecessary data beyond verifying a user’s age and from retaining information longer than is necessary to demonstrate compliance.

Violations are treated as an unfair or deceptive act or practice under section 18(a)(1)(B) of the FTC Act. This mirrors COPPA enforcement authority.

• Requires consultation with appropriate experts for enforcement
• Requires regular audits to ensure compliance.

Directs the Government Accountability Office (GAO) to report on compliance and issue recommendations to Congress.

Website operators would have 1 year after the date of enactment of the SCREEN Act, “to adopt and utilize technology verification measures. . .”

The complete text of the proposed SCREEN Act can be found here.

Of course, Senator Lee was quick to release his own, one-sided, press release, in making the introduction of the SCREEN Act and contends that: Despite previous congressional efforts over the past three decades to shield children from online pornography, prior legislative measures have been challenged and overturned by the Supreme Court on the grounds of not meeting the least restrictive means test. Nonetheless, the Court acknowledged the government’s compelling interest to protect children. Advancements in technology since the Supreme Court last addressed this matter reveal a stark reality: traditional methods like blocking and filtering software have fallen short, leaving an alarming 80% of teenagers exposed to online pornography. The SCREEN Act is designed to align technological progress with the government’s duty to protect children. By requiring commercial pornographic websites to adopt age verification measures, the act seeks to provide a pragmatic and narrowly tailored solution to a complex problem. Senator Lee’s complete press announcement can be read here.

Unsurprisingly, Senator Lee is already touting the support he garnered for the SCREEN Act from various conservative organizations including, the National Center on Sexual Exploitation, National Decency Coalition, Heritage Action, Ethics and Public Policy Center, American Principles Project, Family Policy Alliance, Institute for Family Studies, Family Research Council, Concerned Women for America, Ethics and Religious Liberty Commission, Culture Reframed, Enough is Enough, Envoc, Foundation and Council on Pornography Reform, Eagle Forum, Eagle Forum of Alabama, and The Silent Addiction.

Constitutionality

The Shielding Children’s Retinas from Egregious Exposure on the Net (SCREEN) Act faces potential constitutional challenges, primarily under the First Amendment and past Supreme Court rulings related to online content regulation. Here are the key constitutional concerns:

First Amendment Concerns (Free Speech)

• The act regulates online pornography, which, while subject to certain restrictions, is still protected speech under the First Amendment.
• Prior Supreme Court decisions, such as Reno v. ACLU (1997) and Ashcroft v. Free Speech Coalition (2002), have struck down laws attempting to restrict minors’ access to adult content because they were too broad and infringed on the rights of adults.
• Courts often require that content-based regulations be narrowly tailored and use the least restrictive means to achieve the goal — something previous age verification laws have failed to meet.

Overbreadth & Chilling Effect

• If the SCREEN Act imposes burdens on adult users, such as requiring government IDs or biometric verification, it could discourage lawful access to adult content, raising privacy concerns.
• This could create a chilling effect, where lawful speech is self-censored due to government-imposed barriers.

State vs. Federal Authority

• The Commerce Clause of the Constitution gives the federal government power to regulate interstate commerce, including the internet.
• However, some state-level age verification laws (like Louisiana’s) have already been challenged in court, with opponents arguing that such regulations unduly burden interstate commerce and are best handled at the federal level.

Technological Feasibility & Privacy Issues

• Courts may question whether requiring age verification technology is practical, secure, and narrowly tailored enough to meet legal scrutiny.
• Government-mandated ID verification raises Fourth Amendment privacy concerns and could lead to data security risks.

Likelihood of Being Overturned?

• Similar laws have been struck down before, making it likely that the SCREEN Act would face legal challenges.
• If it is too broad or restrictive, courts may invalidate it as unconstitutional.
• However, if the law is narrowly tailored (e.g., focusing only on commercial porn sites with clear, workable verification methods), it might survive legal challenges.

What Should the Industry do Now

The adult industry has several legal, technological, and advocacy-based strategies to address the Shielding Children’s Retinas from Egregious Exposure on the Net (SCREEN) Act and similar legislation. Here’s what they can do:

Legal Challenges

• If the law takes effect, challenge the law in court on First Amendment grounds (free speech) and Commerce Clause concerns (interstate regulation of the internet).
• Argue that the law imposes unconstitutional burdens on adult users and content providers.
• Cite precedents like Reno v. ACLU (1997) and Ashcroft v. Free Speech Coalition (2002), which struck down similar laws.
• Work with civil liberties groups (e.g., ACLU, EFF) to fight legal overreach.

Advocate for Alternative Solutions

• Promote parental control tools: Encourage the use of filtering software that allows parents to block content without infringing on adult users’ rights.
• Self-regulation: The industry could propose voluntary age verification standards that don’t require government intervention.
• Industry-backed initiatives: Collaborate with tech companies on AI-based content filtering solutions that protect minors while preserving privacy.

Privacy & Compliance Strategies

• Develop privacy-conscious age verification solutions that do not store sensitive user data (e.g., encrypted third-party verification).
• Work with lawmakers to ensure compliance methods are technologically feasible and don’t infringe on user privacy.
• If the law takes effect, explore ways to geofence access to comply with state-specific laws while maintaining a broader global audience.

Public Awareness & Advocacy

• Educate the public about the risks of overbroad censorship and government-mandated online surveillance.
• Highlight the dangers of age verification laws leading to data breaches (e.g., exposing users’ private browsing habits).
• Engage in lobbying efforts to amend or soften restrictive provisions before implementation.

Business Adaptation Strategies

• Explore alternative content distribution models that do not rely on traditional adult sites (e.g., direct subscriptions, private networks).
• Diversify revenue streams to minimize reliance on ad-based adult content platforms that could be affected by restrictive laws.

Monitor Global Precedents

• Look at international models where age verification laws have failed or been modified (e.g., the UK’s abandoned Age Verification Plan).
• Stay ahead of legal trends and prepare contingency plans if laws become widespread.

Final Thoughts

The SCREEN Act is a major development in the United States government’s age verification war against the adult entertainment industry. Thankfully, the SCREEN Act is still in its infancy in the legislative process and so there is time to get organized, prepare and fight against this blatantly unconstitutional attempt at censoring free speech. Non-profit organizations such as the Free Speech Coalition, NetChoice, the Electronic Frontier Foundation, the Woodhull Freedom Foundation and many more are out there and I hope that they will strategize, collaborate and join forces in this battle to protect free speech. As always, I encourage you to reach out to me or your legal advisors for additional information on how the SCREEN Act may impact your business.

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This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently. Transmission of the information contained in this article is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.

About Silverstein Legal

Founded in 2006 by adult entertainment lawyer Corey D. Silverstein, Silverstein Legal is a boutique law firm that caters to the needs of anyone working in the adult entertainment industry. Silverstein Legal’s clients include hosting companies, affiliate programs, content producers, processors, designers, developers, and website operators.