Utah Advances Controversial Porn Tax Bill with Provisions Restricting VPN Use

Republican lawmakers in Utah are advancing a legislative proposal that would impose a tax on adult content and, in a move that has drawn significant concern from civil liberties advocates, would also prohibit the use of virtual private networks (VPNs) and other proxy services to circumvent age verification measures. Senate Bill 73 (SB 73), originally introduced earlier this year, has undergone amendments and gained substantial support in the state Senate, positioning it for passage through the House of Representatives and likely signature into law by Governor Spencer Cox, a Republican known for his stance against pornography.

The bill, sponsored by Republican state Senator Calvin R. Musselman and state Representative Steve Eliason, aims to generate revenue for state initiatives, specifically funding enforcement efforts for Utah’s existing social media and pornography age verification laws. While the initial proposal called for a 7 percent tax on revenues from "material harmful to minors," it has been amended to a 2 percent tax. However, the inclusion of provisions targeting VPNs and proxy servers to bypass age gates has ignited a debate over free expression, privacy, and the extent to which state governments can regulate online content consumption.

Evolution of Senate Bill 73

The legislative journey of SB 73 began earlier in the year, with its initial introduction setting the stage for a debate on taxing digital adult content. The core of the bill, as originally conceived, was to levy a tax on online pornography sales, a concept often categorized as a "sin tax." This category of taxation typically applies to goods or activities deemed socially undesirable, such as alcohol, tobacco, and gambling. However, the application of such a tax to sexually explicit content, which is protected speech under the First Amendment as long as it does not involve illegal activities, has raised immediate legal questions.

The bill’s progression through the Utah State Senate saw significant amendments, particularly concerning the enforcement mechanisms and the scope of restricted online activities. One of the most contentious additions involves the prohibition of commercial entities that host adult content from facilitating or encouraging the use of VPNs or proxy servers to bypass age verification requirements. This includes barring websites from providing instructions on how to use such tools or offering methods for users to circumvent geofencing or blocking technologies.

The specific language in the current form of SB 73 states: "A commercial entity that operates a website that contains a substantial portion of material harmful to minors may not facilitate or encourage the use of a virtual private network, proxy server, or other means to circumvent age verification requirements, including by providing: (a) instructions on how to use a virtual private network or proxy server to access the website; or (b) means for individuals in this state to circumvent geofencing or blocking." This provision directly targets the methods individuals might employ to access content that is restricted by age verification laws, particularly when those laws are enforced through geo-blocking or other content moderation techniques.

Funding and Enforcement Mechanisms

The revenue generated by the 2 percent tax on adult content sales is earmarked for specific state-funded initiatives. Foremost among these is the bolstering of enforcement for Utah’s existing laws mandating age verification for accessing social media platforms and adult websites. This suggests a multi-pronged approach by the state legislature: generating funds to support the infrastructure and personnel needed for enforcement, while simultaneously creating new legal barriers to circumventing those very enforcement measures.

The rationale behind these age verification laws, often cited by proponents, is the protection of minors from exposure to sexually explicit material. However, critics argue that the effectiveness and intrusiveness of such technologies are subjects of ongoing debate, with significant privacy concerns associated with the collection and storage of personal data required for age verification.

Broader Implications for Civil Liberties and Free Expression

The inclusion of the VPN prohibition in SB 73 has generated substantial alarm among digital rights advocates and legal experts. This aspect of the bill is seen as a significant overreach, extending beyond the taxation of content to actively impede users’ ability to access information and exercise their privacy rights online.

"This goes far beyond anything I’ve seen in recent legislative trends in state legislatures controlled by conservative GOP politicians," stated one observer, highlighting the unprecedented nature of such a provision. The argument is that by preventing websites from informing users about how to use VPNs, Utah is attempting to control the flow of information across state lines and interfere with the fundamental right to privacy and secure online communication.

The First Amendment jurisprudence in the United States has consistently recognized the protection of sexually-related speech, provided it does not cross the line into obscenity or other illegal categories. Critics of SB 73 contend that taxing this speech and then actively seeking to prevent users from accessing it through anonymizing technologies like VPNs represents a direct challenge to these established protections.

Furthermore, the bill’s provisions raise complex questions about interstate commerce and federal preemption. Utah’s attempt to regulate the online activities of companies operating nationwide, particularly concerning a category of content that is lawful for adults, could be seen as an infringement on interstate commerce, a power primarily vested in the federal government. The existing legal landscape is a patchwork, with some states, like Alabama, having implemented similar "porn taxes" (Alabama levies a 10 percent tax and has additional requirements for adult performers) and age verification laws. However, the specific prohibition on VPN facilitation in Utah’s bill appears to be a novel and particularly restrictive element.

The "Sin Tax" Debate and Protected Speech

The classification of the adult content tax as a "sin tax" is a point of contention. While such taxes are common for goods like alcohol and tobacco, the nature of pornography as a form of speech distinguishes it significantly. Unlike the purchase of a six-pack of beer, which is not typically considered expressive conduct, the production, sale, and consumption of pornography are widely recognized as falling under the umbrella of protected sexual speech.

SB 73 explicitly defines "covered entities" to include all entities that sell adult content through various means, such as clip sales, subscriptions, and fan sites. These entities would be subject to the 2 percent tax on their Utah-based revenues. The bill’s approach is seen by some as a vindictive ploy to make operating smaller adult content businesses more difficult, potentially creating a less competitive market.

Potential Legal Challenges and Future Outlook

The passage of SB 73 is widely anticipated to trigger significant legal challenges. Opponents are likely to argue that the bill violates the First Amendment by restricting protected speech, infringes upon privacy rights, and oversteps state authority in regulating interstate commerce. The legal battles that would ensue could have far-reaching implications for online content regulation and digital freedom across the United States.

While the bill is expected to pass the Utah legislature and be signed into law by Governor Cox, the long-term viability of its most controversial provisions, particularly the VPN restriction, remains highly uncertain. Legal experts anticipate a federal court showdown, where the constitutionality of such measures will be rigorously tested. The outcome of these potential legal challenges will be closely watched by policymakers, technology companies, and civil liberties organizations nationwide, as they grapple with the evolving landscape of internet regulation and free expression in the digital age.

The current legislative session in Utah is nearing its conclusion, and SB 73 is on a clear path toward enactment. However, the debate over its substance and potential impact is far from over, with future legal and societal ramifications yet to unfold. The bill represents a significant escalation in the legislative efforts to control and tax online adult content, pushing the boundaries of governmental authority in the digital realm.