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> You've flipped the order here to advocating that we should start with the most burdensome restrictions. No, you're saying it is the most burdensome. I'm sayi

by jpcfl 3y ago

> You've flipped the order here to advocating that we should start with the most burdensome restrictions. No, you're saying it is the most burdensome. I'm saying it makes to hold porn distributors accountable for who they distribute to. No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that. Whatever that burden is, it simply makes sense to put a lot of it on the people producing and disseminating the stuff. > iOS and Android already have tools that react to those headers and can be used to block content Are you saying Apple and Google should be responsible for managing pornographic material used on their devices? Should Smith and Wesson be responsible for how people use their weapons? Apple and Google can provide these tools, but what kind of legislation would you propose we have around it? > So is the problem here that parents don't know about these controls? The problem is that parents protecting their children from porn is only part of the solution. Again, I'm not arguing against these kinds of tools (and possibly legislation). I'm saying that implementing these tools without reeling in the distributors is akin to banning drug paraphernalia without regulating drug sales. I don't know the details of how TX legislators expect porn companies to ID their users, and I totally agree that people have a right to privacy, especially from the gov't. But we need to balance the competing interests here, and the current systems make it way too easy for kids to access porn. I'm not convinced that the best path forward is to let porn companies distribute to whoever they want, and require tech companies and parents to compete with that. We might as well deregulate vape pens while we're at it.

danShumway 3y ago
> No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that. Then what value to the conversation are you bringing? Like, seriously, I don't mean to be snarky -- legitimately, if you're not going to evaluate the risks and burdens, then what possible conversation can you have about the 1st Amendment implications of this law? "This law is dangerous" "I'm not going to make a decision on whether it's dangerous, but we should do it" What reaction do you expect me to have to that? > Apple and Google can provide these tools, but what kind of legislation would you propose we have around it? Legislating that the tools are provided could be an option. Legislating labeling would be problematic but would have fewer 1st Amendment implications than what you propose; it would be much more likely to survive a 1st Amendment challenge. Even beyond regulation, government awareness campaigns for parents about the availability and usage of these tools could be an option. Legislating standards for these tools and functionality requirements could be worth looking into. Whether or not public government institutions like schools are even using these tools at all might be valuable data to collect. At the very least, you'd expect some kind of tangible information about where these tools fall short. 1st Amendment challenges can be won based on governments shortcutting other legislation and skipping out on requirements to provide actual evidence that other restrictions wouldn't have been sufficient. Note that Pornhub is not actively trying to show porn to minors. They're just not, they voluntarily label the entire site. This is not like fighting against the ad industry, the businesses involved are trying to label their content, they're not trying to sneak it through filters. So what specifically are the holes in the current technological solutions and parental controls? You say that parents protecting kids is only part of the solution, but... what specifically is insufficient about that? What is deficient in the current tools and why couldn't that deficiency be met with additional regulation around labeling standards? Again, on-device controls are an affordance that is totally absent in physical spaces. It is inaccurate to equate digital access controls and physical access controls, they exist quite literally in different worlds. Distribution is in many cases in the physical world the only mechanism available for restricting children's access to harm. On the Internet, that's not the case -- and so there's an additional responsibility here to justify a much riskier regulation and to explain why the additional safeguards that digital spaces afford are insufficient. > I don't know the details of how TX legislators expect porn companies to ID their users Maybe you should research that? You're having a conversation about the constitutionality of this law, the ID requirements are pretty important to that conversation. > But we need to balance the competing interests here You can't do that if you're unwilling to quantify what the burdens are. You're telling me we need to balance competing interests, and you're refusing to look at what the competing interests are and bringing no data or research forward as to why device-level controls aren't sufficient or what the actual problems are that need to be addressed. > and require tech companies and parents to compete with that. Pornhub is not trying to show children porn; this isn't a competition. I would love to see any kind of evidence that Pornhub is motivated by anything other than what they say -- that the law is extremely burdensome, runs the risk of bankrupting large swaths of the industry, and abridges the 1st Amendment rights of adult content producers and the 1st Amendment rights and privacy rights of adult consumers. But to have that conversation, you can't handwave burdens. The entire conversation is about burdens. If you don't have an opinion on what those burdens and risks are, then respectfully, you don't really have anything to add to the conversation. ---- I do think this in particular is a misconception here that's important to point out though: > Whatever that burden is, it simply makes sense to put a lot of it on the people producing and disseminating the stuff. I'm sorry, but that's not a 1st Amendment consideration. If a law creates a burden beyond the state's compelling interest in that law, then it doesn't matter who it's applied to, it's still unconstitutional. Additionally, part of the criticism of this law is that it doesn't only place a burden on distributors, it also places a burden on adult consumers. Putting a restriction where it "makes sense" is still inappropriate when it creates 1st Amendment burdens for ordinary citizens who will bear the brunt of the privacy risks involved. But even if that wasn't the case, you can't win a 1st Amendment lawsuit by saying, "yes the law is burdensome but if anyone should be burdened it should be them." The 1st Amendment doesn't care about that.
- jpcfl 3y ago
  My point is simple: Porn companies have a duty to keep their product out of the hands of children. I didn't intend to get into the details of the legislation, but on the surface I think it's perfectly reasonable to require proof-of-age from porn users, and to require the display health disclosures.
  - danShumway 3y ago
    I think a lot of things sound reasonable on the surface before the details are clear. Keeping porn away from children is a good goal to have, and porn companies do have a duty to help with that. I think Pornhub itself would agree with that. So I understand having that initial reaction; it's a completely normal, human reaction to have to the idea of children watching porn -- I have that surface-level reaction too. Unfortunately, the devil is in the details and surface-level analysis of the legislation doesn't capture the actual problems with the law. Respectfully, you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case (https://news.ycombinator.com/item?id=37092329 https://news.ycombinator.com/item?id=37092329) but I think it's important when doing that kind of analysis to take the time to figure out what the actual consequences would be of the legislation being proposed. Especially where sex/porn is concerned: we're coming off of FOSTA/SESTA, two bills that were designed to help keep sex workers safe that sounded good on the surface and that have been widely criticized by sex workers as having made their lives significantly more dangerous. Legislating sex is complicated. In this case, both free speech and child safety are too important for people to be making decisions about this law without digging into the details.
    - jpcfl 3y ago
      > you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case I came in saying that their stance that they should not have to ID their customers because there are better methods to keep porn away from kids and TX lawmakers don't care about children is weak. I was specifically focusing on that rationale, not the details of an ID system. I have no doubt that that will be fraught with issues. But the porn companies don't want to play ball at all, which I think puts them in a very weak position. Hopefully that clarifies my original comment.

by jpcfl 3y ago

danShumway 3y ago

> No matter what regulation there is, someone will have to bear a burden, but I'm not going to try to quantify that. Then what value to the conversation are you bringing? Like, seriously, I don't mean to be snarky -- legitimately, if you're not going to evaluate the risks and burdens, then what possible conversation can you have about the 1st Amendment implications of this law? "This law is dangerous" "I'm not going to make a decision on whether it's dangerous, but we should do it" What reaction do you expect me to have to that? > Apple and Google can provide these tools, but what kind of legislation would you propose we have around it? Legislating that the tools are provided could be an option. Legislating labeling would be problematic but would have fewer 1st Amendment implications than what you propose; it would be much more likely to survive a 1st Amendment challenge. Even beyond regulation, government awareness campaigns for parents about the availability and usage of these tools could be an option. Legislating standards for these tools and functionality requirements could be worth looking into. Whether or not public government institutions like schools are even using these tools at all might be valuable data to collect. At the very least, you'd expect some kind of tangible information about where these tools fall short. 1st Amendment challenges can be won based on governments shortcutting other legislation and skipping out on requirements to provide actual evidence that other restrictions wouldn't have been sufficient. Note that Pornhub is not actively trying to show porn to minors. They're just not, they voluntarily label the entire site. This is not like fighting against the ad industry, the businesses involved are trying to label their content, they're not trying to sneak it through filters. So what specifically are the holes in the current technological solutions and parental controls? You say that parents protecting kids is only part of the solution, but... what specifically is insufficient about that? What is deficient in the current tools and why couldn't that deficiency be met with additional regulation around labeling standards? Again, on-device controls are an affordance that is totally absent in physical spaces. It is inaccurate to equate digital access controls and physical access controls, they exist quite literally in different worlds. Distribution is in many cases in the physical world the only mechanism available for restricting children's access to harm. On the Internet, that's not the case -- and so there's an additional responsibility here to justify a much riskier regulation and to explain why the additional safeguards that digital spaces afford are insufficient. > I don't know the details of how TX legislators expect porn companies to ID their users Maybe you should research that? You're having a conversation about the constitutionality of this law, the ID requirements are pretty important to that conversation. > But we need to balance the competing interests here You can't do that if you're unwilling to quantify what the burdens are. You're telling me we need to balance competing interests, and you're refusing to look at what the competing interests are and bringing no data or research forward as to why device-level controls aren't sufficient or what the actual problems are that need to be addressed. > and require tech companies and parents to compete with that. Pornhub is not trying to show children porn; this isn't a competition. I would love to see any kind of evidence that Pornhub is motivated by anything other than what they say -- that the law is extremely burdensome, runs the risk of bankrupting large swaths of the industry, and abridges the 1st Amendment rights of adult content producers and the 1st Amendment rights and privacy rights of adult consumers. But to have that conversation, you can't handwave burdens. The entire conversation is about burdens. If you don't have an opinion on what those burdens and risks are, then respectfully, you don't really have anything to add to the conversation. ---- I do think this in particular is a misconception here that's important to point out though: > Whatever that burden is, it simply makes sense to put a lot of it on the people producing and disseminating the stuff. I'm sorry, but that's not a 1st Amendment consideration. If a law creates a burden beyond the state's compelling interest in that law, then it doesn't matter who it's applied to, it's still unconstitutional. Additionally, part of the criticism of this law is that it doesn't only place a burden on distributors, it also places a burden on adult consumers. Putting a restriction where it "makes sense" is still inappropriate when it creates 1st Amendment burdens for ordinary citizens who will bear the brunt of the privacy risks involved. But even if that wasn't the case, you can't win a 1st Amendment lawsuit by saying, "yes the law is burdensome but if anyone should be burdened it should be them." The 1st Amendment doesn't care about that.

jpcfl 3y ago
My point is simple: Porn companies have a duty to keep their product out of the hands of children. I didn't intend to get into the details of the legislation, but on the surface I think it's perfectly reasonable to require proof-of-age from porn users, and to require the display health disclosures.
- danShumway 3y ago
  I think a lot of things sound reasonable on the surface before the details are clear. Keeping porn away from children is a good goal to have, and porn companies do have a duty to help with that. I think Pornhub itself would agree with that. So I understand having that initial reaction; it's a completely normal, human reaction to have to the idea of children watching porn -- I have that surface-level reaction too. Unfortunately, the devil is in the details and surface-level analysis of the legislation doesn't capture the actual problems with the law. Respectfully, you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case (https://news.ycombinator.com/item?id=37092329 https://news.ycombinator.com/item?id=37092329) but I think it's important when doing that kind of analysis to take the time to figure out what the actual consequences would be of the legislation being proposed. Especially where sex/porn is concerned: we're coming off of FOSTA/SESTA, two bills that were designed to help keep sex workers safe that sounded good on the surface and that have been widely criticized by sex workers as having made their lives significantly more dangerous. Legislating sex is complicated. In this case, both free speech and child safety are too important for people to be making decisions about this law without digging into the details.
  - jpcfl 3y ago
    > you came into this conversation speaking pretty boldly about Pornhub's motivations and about the strength/weakness of the case I came in saying that their stance that they should not have to ID their customers because there are better methods to keep porn away from kids and TX lawmakers don't care about children is weak. I was specifically focusing on that rationale, not the details of an ID system. I have no doubt that that will be fraught with issues. But the porn companies don't want to play ball at all, which I think puts them in a very weak position. Hopefully that clarifies my original comment.