On the Wild West of Internet Regulations and the Birth of Pornhub
Kelsy Burke: The Internet Is for Porn
In the fictional world of the Broadway musical Avenue Q, Kate Monster is a puppet with a sweet demeanor, a lavender-colored turtleneck, and a bob hairstyle. She works as an assistant kindergarten teacher, and when she finally gets to teach a kindergarten lesson all by herself, she chooses to teach children about the wonders of the World Wide Web. But when she describes her lesson to a reclusive, shaggy-haired neighbor named Trekkie Monster, he interrupts every line with what he says is the real reason for the Internet: porn.
When Avenue Q premiered in 2003 with its song “The Internet is for Porn,” it became the first Broadway cast album to be released with a parental advisory label. At the time, a majority of American households, 62 million of them, owned a computer that connected to the internet. And when it came to its emergence, Trekkie Monster captured a widespread fear.
“All-pornography, all-the-time,” is how Pamela Paul, the author of the 2005 book Pornified, put it. According to her analysis, based on a number of internet polls not generalizable to the American population, virtually everyone had come across internet porn by the early aughts.
But neither Trekkie Monster nor Paul quite captured the reality. The pornography industry’s profits at the turn of the century, with accurate estimates ranging from $2.6 billion to $10 billion annually, were far below those of other lucrative vices, such as the tobacco industry, with profits of around $45 billion, and gambling earning $50 billion.
Most of the earliest online porn sites made money through paid subscriptions, in which users could tour for free but were forced to enter their credit card number to be charged for either a one-time pass or for various tiers of monthly memberships. As early as 2000, owners of these sites were lamenting the decline in online profits, as those that were once able to charge $30 for a monthly membership were now charging $10 thanks to growing competition.
Between 2000 and 2005, the Pew Research Center asked a national sample of American adults, “Do you ever visit an adult website?” and only 13 to 15 percent of respondents said yes. This estimate is similar to data reported by the New York Times from the Juniper Media Metrix survey in 2001, which estimated 28 million users of pornographic websites that year.
This number sounds big, but comparing it to the total number Americans ages eighteen to sixty-four (just over 174 million in 2000) or the number of Americans with basic cable at the time (nearly 73 million households) suggests that internet porn was not quite the national epidemic that some assumed.
Porn viewership has steadily increased since the 1970s, especially among porn’s most loyal consumers, young adult men. Between 1973 and 1980, 45 percent of men ages 18 to 26 reported they had viewed porn in the past year, compared to 61 percent between 1999 and 2007. The internet did cause a jump in porn consumption, but for most Americans that increase was relatively small. In 1973, 31 percent of men across all ages reported that they had viewed porn, compared to 33 percent in 2000.
These data come from the General Social Survey that tracks Americans’ reported consumption of porn, which may be different from their actual consumption. Still, the authors of one study controlled for attitudes regarding pornography (that it should be illegal) and found that these attitudes remained relatively stable between the 1970s and early aughts, suggesting that people now are no more or less likely to report porn viewership honestly.
The internet did not cause a generation to suddenly become porn crazy. We were already porn crazy, and men especially had long been exposed to dirty pictures through a variety of media prior to the World Wide Web.
Still, pornography by the turn of the twenty-first century had infiltrated virtually all forms of contemporary media: television, movies, magazines, and music. Commentators came up with various names to describe its impact; most agreed our society was “sexualized,” even “hypersexualized.”
We lived in a “raunch culture,” said journalist Ariel Levy; in a “strip-tease culture,” according to journalism professor Brian McNair; and a “pornified culture,” a term bestowed by Pamela Paul.
The growth of the pornography industry between 1998 and 2001 surpassed online shopping and other arts and entertainment industries. Porn stars who were lucky enough to sign contracts with the two largest production companies, Vivid and Wicked Pictures, could make $10,000 a week by shooting two scenes. Then they could go on to make even larger paydays from public appearances, like dancing at nightclubs.
Jenna Jameson, whom the New York Times called the “Julia Roberts of Straight Porn,” worked an exclusive contract with Wicked Pictures. By 2001, she was earning around $60,000 per film. She also appeared in mainstream Hollywood films and on television, was a regular on Howard Stern’s radio program, and wrote a bestselling memoir.
One porn industry mogul, John Stagliano, who produced the series Adventures of Buttman, reported to the New York Times that his production schedule had doubled between 1990 and 1993, along with his profits, which grew dramatically, from $34,000 to over $1 million. Not only was there the robust home video market, but there were also cable networks dedicated exclusively to adult entertainment, and the internet, which offered a new opportunity for paid home consumption.
As David Marshlack, the founder of Entertainment Network, a company that owned thousands of pornographic websites, said at the end of the decade, “It’s as if I owned a bank and printed my own money.”
In 1995, when only about one in four households had a computer and far fewer had an internet connection, the media was full of scary stories about the World Wide Web. It was the year of the movie The Net, starring Sandra Bullock, a thriller whose villain was a contract killer hired by cyberterrorists. That July, the same month The Net premiered in theaters, Time magazine published an exclusive cover story featuring a “new study” by Marty Rimm on the startling dangers of internet pornography.
In reality, the study was an 85-page undergraduate research paper, possibly partly plagiarized, that managed to get published in a law journal without undergoing any peer review. With these delegitimizing details obscured at the time, the Time story prompted coverage in news outlets around the country, including national television programs like Dateline. All discussed the so-called findings that 85 percent of images on the internet were pornographic, and many of those images would most certainly be judged obscene in the courts—images of children; of “deviant” behavior such as bestiality, urination, and defecation; and torture scenes.
In the weeks that followed, the internet fought back against its critic Mr. Rimm. Journalists, academics, and interested laypeople took to online message boards to tear apart the study’s findings, analysis, and conclusions and to ruin the reputation of Rimm, who was no social scientist but, rather, a scrappy entrepreneur who used his sensational writings for his own success.
The proverbial final nail in the coffin came when the public learned that Rimm had, the year before, published The Pornographer’s Handbook: How to Exploit Women, Dupe Men, and Make Lots of Money. Rimm, it seemed, was trying on a variety of viewpoints when it came to porn, not based on conviction or science, but rather, to see what would most effectively lead to his fame and fortune. Now antipornography activists could hardly come to his defense.
Still, the dust that the Rimm study stirred was in the air. Most politicians agreed that online content, especially pornography, needed regulations, but they faced a challenging puzzle over how to impose them. The internet was like the Wild West, a place where normal rules and expectations did not apply. The same year the Rimm study was debunked, Senator James Exon introduced his solution in the form of a Senate amendment, the Communications Decency Act (CDA).
The CDA was proposed as an amendment to the broader Telecommunications Act passed in 1996, which overhauled federal laws regulating telephone, television, and computer broadcast services for the first time in over 60 years.
Senator Exon, a conservative Democrat and former governor of Nebraska who never lost an election, made it his mission to ensure that, in his words, “the information superhighway should not become a red light district.” He proposed that the CDA explicitly prohibit using a telecommunications device to make or transmit obscene material. Existing laws dating back to Comstock dealt only with transmission via the U.S. Postal Service.
Another of the CDA’s explicit aims was to protect children as potential consumers of pornography. Throughout the 1980s, the relationship between kids and porn reflected a broader cultural panic over child sexual assault and abduction.
In 1987, the FBI boasted 249 child pornography prosecutions, compared to only 3 in 1983. Prohibiting minors from consuming pornography had already been established through court precedent in 1968, when the Supreme Court ruled in Ginsberg v. New York that even if “material concerned with sex” could be legally sold to adults (i.e., was not deemed obscene), that material could not legally be sold to minors.
The CDA articulated this precedent and applied it to the internet, criminalizing the use of “any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards.”
Exon himself admitted that he had virtually no internet experience. A friend who was more technologically savvy than he downloaded and printed a series of pornography images, which Exon filed in a blue folder. Calling this the “blue book,” he stored it on his desk in Congress so that anyone could see the “filth” available online.
In Exon’s personal testimony, he implored Congress to pass the CDA. “In my eight years as governor of Nebraska and my 17 years of having the great opportunity to serve my state in the Senate, there is nothing that I feel more strongly about than this piece of legislation,” he said.
“The porn world was there for the taking,” Ronson reflects, “not by some gangster or some porn devotee, but by somebody techy.”
The CDA, as part of the Telecommunications Act, was passed by Congress with widespread support and signed into law by President Clinton. One small provision of the Communications Decency Act that received little fanfare at the time was Section 230, which states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In other words, website owners themselves were not to be held accountable for the content that others might post to their site. Thanks in part to the legal protection offered by this provision, three former PayPal employees started the video-sharing site YouTube in 2005. It was the first major online platform that made it easy for those with only basic computer skills to upload personal videos or recordings to share with other users. The site, depicted with a computer whose screen was a mirror, was dubbed Time magazine’s “Person of the Year” in 2006 and, by that time, had more than 25 million user-uploaded videos.
Fabian Thylmann was a teenager living in Düsseldorf when the internet, and online porn along with it, was gaining momentum in the 1990s. He wasn’t old enough to have a credit card, and so he found chat rooms where users traded passwords to get access to subscription sites.
With the benefit of hindsight, journalist Jon Ronson, who has written extensively about adult entertainment, names Thylmann’s early encounters bypassing porn sites’ paywalls as the beginning of a butterfly effect: the small and mundane choices made by a teenager that dramatically shaped internet pornography as we know it today.
“The porn world was there for the taking,” Ronson reflects, “not by some gangster or some porn devotee, but by somebody techy.” Thylmann, whom New York magazine later referred to as among the geek-kings of smut (adding a technological adjective to a title adopted decades earlier by Larry Flynt), fit the bill. He became familiar with website production when he wrote code to track the traffic for a few online porn sites. By 2006, a handful of sites had emerged that followed the YouTube model. Thylmann managed to buy a small company called Mansef, which operated one of them. It was called Pornhub.
Thylmann changed the company name to Manwin and set out to convince investors to support his business, which he insisted was a technology company first and foremost. Its formal purpose, as agreed upon in a meeting of shareholders, was boring and nondescript: “the provision of technical services in the field of IT and website development as well as the associated administrative and organizational services of all kinds for affiliated companies as well as for other clients and third-party companies.”
Yet what this translated into in practice was buying up and overseeing the operation of porn sites. “I figured out that it seems to be an awfully good thing to buy adult websites in the current climate,” Thylmann told one reporter in 2011, “because you can get things cheap, and there are obvious ways to improve what they’re doing.”
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From THE PORNOGRAPHY WARS. Used with the permission of the publisher, Bloomsbury. Copyright © 2023 by Kelsy Burke.
