Comment by: William Durst on January 27, 2026 23:25
I strongly oppose this bill.
These bills, which have been passed in several states, are simply legal moralism at its finest. States have historically tried to regulate obscene and indecent material under the guise of protecting children, e.g., Butler v. State of Michigan, 352 U.S., 380 (U.S. 1957). Under Butler, Alfred Butler was arrested under Michigan's obscenity statute when he sold a copy of the book The Devil Rides Outside to a police officer. The state trial judge found that the book would lead to the corruption of children, and Butler was convicted and fined. However, the U.S. Supreme Court found that the statute violated the Due Process Clause of the Fourteenth Amendment, as it reduced the adult population to reading only what was available to children.
H.B. 4412 along with S.B. 498 are just the modern equivalents of Butler, as their passage will essentially reduce WV's population to only viewing online material that is available to children. However, this is not exactly true because an individual can easily bypass these restrictions utilizing a VPN or using a social media platform. Social media sites like Twitter or Bluesky would most likely not be found to house 33% or more of "sexual material harmful to minors." Therefore, a minor with a social media account on these sites would be able to access pornography even if H.B. 4412 was signed into law. Furthermore, unless WV completely bans the use of VPNs, then an individual would still be able to gain access to sites that fit the criteria of H.B. 4412. Even if H.B. 4412 was amended to require websites to block VPN traffic it would still be ineffective. VPN companies utilize stealth VPNs, which disguise VPN traffic as normal internet traffic, making VPN usage harder to detect. The addition of an amendment requiring websites to block VPN traffic would most likely just start an arms race between stealth and detection software.
Another issue in H.B. 4412 is the issue concerning data. H.B. 4412 requires that that commercial entity or third party which performs the age verification not retain any identifying information of the individual after access has been granted to the material. However, data deleted from a hard drive or server is never really deleted, but rather overwritten with new data over time. For example, if I delete a large file in the recycling bin, then my computer will show that more space is available. Technically, this isn't true. The file still exists, but the space it encompassed can now be overwritten with new data. The issue with that file still existing is that it is recoverable with the right tools.
Recoverable data is an issue in terms of the data H.B. 4412 requires for age verification, as data breaches are a matter of when not if. H.B. 4412 requires individuals to verify using their name, social security number, date and place of birth, mother's maiden name, biometric records, medical information, educational information, financial information, or employment information. Due to data being overwritten and not truly deleted, if a malicious actor via a data breach gained access to a commercial entity or third-party's data, then said malicious actor could potentially recover data pertaining to individuals that hasn't been completely overwritten. In essence, H.B. 4412 is setting up the people of WV to be subject to identity theft, blackmail, and fraud in the event of a data breach.
In relation to the data individuals must sacrifice to verify their age, there is also the nature of the cost placed on the commercial entities who must implement age verification software on their websites. Age verification services, depending on the size of the commercial entity having to implement them, can base their costs on large monthly subscription fees to user-based fees that range from $0.50 to a few dollars per verified user. H.B. 4412 is vague about how often a user must verify their age. Therefore, if one assumes that their age would have to be verified each time they visited a site that falls under H.B. 4412, then the cost of the age verification could be debilitating to commercial entities who accrue millions of users per day.
This is why several large companies that distribute pornography to adults have opted to end their services in states, which have passed similar bills to H.B. 4412 due to the burden placed on interstate commerce. Under Pike v. Bruce Church, Inc., 397 U.S. 137 (U.S. 1970), when a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, then it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Here, the local benefit is to protect children from sexual content deemed harmful. The U.S. Supreme Court has historically held that a state has a legitimate interest in protecting minors from explicit content that may be harmful. (Ginsburg v. State of New York, 390 U.S. 629 (U.S. 1968)) However, the U.S. Supreme Court has also historically held that speech that adults have a right to engage in may not be unnecessarily suppressed for the sake of protecting children. (Reno v. American Civil Liberties Union, 521 U.S. 844 (U.S. 1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002))
The state has a legitimate interest in protecting children from explicit content that may be harmful with the caveat that the state's interest does not unnecessarily suppress the rights of adults to engage in free speech they're entitled to hear. In Free Speech Coalition v. Paxton (U.S. 2025), the U.S. Supreme Court ruled that a Texas law like WV's H.B. 4412 only incidentally burdened the protected free speech of adults. However, under the Pike balancing test, a court will have to analyze whether the state's interest, i.e., protecting minors outweighs burdens imposed on interstate commerce. Those burdens, discussed above, include user-based costs to verify each and every individual, vast privacy concerns, and complete nonaccess if major sites decide to leave the state due to cost overburden. All for the sake of a benefit that is at best illusory.
Aside from the burden on interstate commerce that H.B. 4412 would have, there is also the issue that H.B. 4412 is content-based regulation on free speech. Under Paxton, the U.S. Supreme Court ruled that laws like H.B. 4412 only incidentally burden the protected free speech of adults and that these types of laws would be subject to intermediate scrutiny. For a law to pass under intermediate scrutiny, the state has the burden to show that a law furthers an important government interest by means that are substantially related to that interest. However, under the traditional rules prior to Paxton, a content-based regulation on free speech would be subject to strict scrutiny. (U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (U.S. 2000)) Under strict scrutiny, the state would have the burden to show that a law is narrowly tailored to promote a compelling government interest, and if a less restrictive alternative would serve the government's purpose, then the legislature must use that alternative.
The U.S. Supreme Court is right in the sense that a simple age verification would only incidentally burden the protected free speech of adults. However, that is only if you view it at a surface level and don't take into account the numerous privacy concerns and the fact that adults would most likely lose access to explicit content in its entirety if the companies that distribute the content decide to abandon a state's market. Therefore, I implore the Committee to take the least restrictive alternative regarding H.B. 4412. If the Committee wants to show that this bill is not a plot of legal moralism, but rather an actual effort to protect children from harmful content, then the Committee should let H.B. 4412 die or amend the bill to introduce device-based age verification instead.
In general, when I use an electronic device to access a website that website can see what type of operating system I use (IOS, Windows, Linux); my system architecture (32 bit or 64 bit); my browser version (Chrome, Firefox, Safari, Edge); my device type (desktop, laptop, phone, tablet); and my language and time zone. Through device-based age verification I would also be able to share my age status with websites, apps, and programs by verifying my age at the operating system level. For example, when a device is first bought and activated the device itself would require age verification through a government approved ID. This would require age verification only once and would give parents more control over what their children see, as they are likely the ones buying and setting up the devices. Current devices on the market and within the state's jurisdiction could simply update and require age verification. This would shift the burden of cost from companies that distribute explicit material to companies such as Microsoft and Apple who already provide some parental controls on their devices.
In theory, device-based age verification would address all the problems explained above. Children would not be able to view explicit material on social media websites because their device would convey to the website that they are either minors or adults. This could potentially change a minor's social media account settings if they had made an account that stated they were over the age of 18. Furthermore, a VPN should not be able to bypass device-based age verification because a VPN masks IP location rather than interfering with information like browser type or your operating system. Data breaches would also be limited because rather than identifying information being stored in a third-party server, the data would be stored inside the device itself. The only conundrum involved in device-based age verification is that parents would simply have to keep track of which of their devices are age verified as adults and keep them out of the hands of children.
With the issues stated above, I implore the Committee to kill H.B. 4412 as is or amend the bill to introduce device-based age verification rather than website-based age verification.