How DOJ censorship helped Pornhub dominate the market

And why the National Center for Missing & Exploited Children is likely more of the same

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I intended to write a very short history of pornography censorship and obscenity in the US. As I mentioned in Why you can't flash yo titties on Zoom, I’ve been mildly obsessed with pornography censorship ever since I tried (and failed) to find consensual non-consent porn on Xvideos. 

But instead I want to talk about how the DOJ helped shut down law-abiding American porn producers, paved the way for Pornhub to dominate the market for online porn, and made the problem of illegal pornography worse, not better. 

It’s topical because Nicolas Kristof recently accused PornHub of breaking the law by not doing enough to stop users from uploading copyrighted videos, videos of underage performers, and videos depicting non-consensual violence. It’s important to note here that we really can’t trust Kristof’s reporting about anything. 

Days later, reports came out that Visa and Mastercard were investigating their relationship to Pornhub. 

Now Pornhub has announced they’re requiring ID for uploaders (something sex workers have been asking for for a long time), increasing their moderation efforts, and have begun working with the National Center for Missing & Exploited Children.

Several things bother me about all of this. First, though, I think it’s great that Pornhub is now on a slightly more even playing field with smaller, US-based porn producers. If small pornographers like Shine Louise have to prove all her performers are of age then the least Pornhub can do is affirm that all uploaders are adults. 

However, if Pornhub has been breaking the law, why are payment processors doing the investigation and not law enforcement?

My hunch is that the US government is using money laundering and “know your customer” laws to force payment processors to play cops. 

I’ve long hated money laundering and “know your customer” laws for many reasons. First, they’re a giant privacy violation. And for what? These laws measurably don’t work to stop big banks from financing terrorism and human trafficking. There are several reasons they don’t work. One is that, the DOJ will come down hard on small American businesses but refuses to actually investigate or prosecute large, offshore companies. They also can’t work because the vast majority of money laundering happens with cash. Even if these laws could meaningfully reduce money laundering, who does that benefit? The vast majority of money laundering is for victimless crimes, including the consensual adult sales of drugs, gambling, porn, and prostitution. These laws simply work to give large incumbents a regulatory advantage over their competitors. 

I mean, you could argue the DOJ is partly responsible for Pornhub’s market dominance. The Bush-era Obscenity Task Force started shutting down American porn companies right and left in 2005. Pornhub launched in 2006. 

The DOJ jailed Pornhub’s competition (and those who didn’t get arrested shut down their sites in fear by the hundreds) while allowing Pornhub to flout copyright and 2257 requirements (which establish that porn performers are citizens and of age). 

It’s just absolutely fucked that Shine Louise has to worry about copyright, 2257 requirements, and obscenity charges but Pornhub seemingly does not. (Not that Crashpad Series is particularly on the edge AFAIK. Then again, in America the authorities can arrest you for anything porn-related.) 

By doing this, the DOJ helped move the adult industry away from a thriving competitive marketplace of independent American porn producers who were legally required to prove their performers were consenting adults toward three or four offshore tax-evading secretive companies with zero requirements to prove the porn they host is created by consenting adults. Does anyone seriously think this made the porn industry safer or better in any way, shape, or form? 

Yes, the internet would have upended the thriving competitive marketplace of independent American porn producers no matter what. But the DOJ measurably, objectively, and unequivocally made the situation far worse for zero benefit to anyone other than Mindgeek (which owns Pornhub along with many many other tube sites). 

Forcing payment processors to play cops also incentivizes them to stop serving individuals and companies in legal-but-disfavored industries like porn, gambling, and firearms. These laws are likely why PayPal and American Express won’t serve the adult industry. Again, the net result of this isn’t less money laundering or abuse in the adult industry, but more. It’s not like porn, gambling, or firearms sales go away when payment processors drop companies and categories. The bad and good actors alike just move to payment processors who are less afraid of the DOJ. Again, this means less accountability for these players, not more. 

Now, post-Kristof expose of dubious accuracy we again have the DOJ inserting itself into the industry to make things worse. But rather than making arrests like they do when dealing with small-time, independent American pornographers Pornhub has agreed to work with the National Center for Missing & Exploited Children (NCMEC), a wing of the DOJ. 

Unfortunately, as with every DOJ incursion into porn, Pornhub working with the NCMEC is unlikely to limit the production of child pornography, revenge porn, or truly violent porn but will likely enrich cronies, limit free speech online, and expand the market for more dangerous black market pornography. 

The NCMEC does nothing to find missing kids, according to Elizabeth Nolan Brown. As I’ve previously pointed out, the DOJ declined to investigate the more than 45 million instances of child sexual abuse material (CSAM) tech companies delivered to them in 2019 alone. 

The NCMEC does, Brown says, pay huge salaries to career crony charities. And since the NCMEC won’t honor Freedom of Information Act (FOIA) requests, there’s zero transparency or accountability. We know that they lie about sex trafficking. 

Not only is it unclear how Pornhub sending potential child porn to the NCMEC is going to protect children, it may not benefit Pornhub either. Brown noted that the Justice Department actually used the fact that Backpage pro-actively reported anyone who looked under 21 (unlike most other personals sites) to the NCMEC against Backpage in their court battles to take Backpage down. 

Pornhub has also made the NCMEC a “Trusted Flagger,” meaning Pornhub will immediately take down any video the NCMEC flags for moderation prior to review.

This is bad news for free speech. Remember how subjectively and expansively the courts have defined “obscenity,” which is not protected by the First Amendment? Remember how the US government has already imprisoned pornographers for making fully consensual porn that ran afoul of censors’ taste? Giving the DOJ the power to proactively censor any video for any reason is a really good way to push the production and distribution of taboo porn right into the black market where it’s impossible to tell whether it’s consensual and far more dangerous for performers and producers. 

But, again, there’s nothing the DOJ loves doing more than making it artificially dangerous for people to do things they don’t like. Except maybe making cronies and huge, offshore incumbent corporations even richer and less susceptible to competition. And all in the name of protecting children. But without ever, actually, protecting children. Or even bothering to investigate.