The FTC’s Settlement With Aylo: This Isn’t Really About Fighting CSAM And Revenge Porn

This is part two of a two-part series about the recent settlement between the Federal Trade Commission (FTC), the Utah Consumer Protection Division (CPD), and Aylo, the parent company of Pornhub. The order (which has now been approved by a federal court) settled allegations that Aylo let child sex abuse material (CSAM) and non-consensual intimate imagery (NCII) such as revenge porn and rape videos run rampant on Pornhub and other adult sites under Aylo’s umbrella. 

Reducing the incidence of such abysmal content online is certainly a good thing. However, as part one explained, the way the FTC went about it is ultimately self-defeating. Plus, as this post will explain, fighting CSAM and NCII is only the surface goal of the Aylo settlement. Make no mistake: The FTC’s and Utah’s real agenda here is to attack free speech on the Internet – legal speech that, unlike CSAM, is protected by the Constitution – under the guise of “protecting consumers.”

This investigation was initiated under the Biden FTC, but it concluded under Trump’s FTC, and it must be understood in that context: as part of a larger right-wing effort to ban even legal, constitutionally-protected pornography and to control what Americans say and read online. 

Neither of those goals is a secret. The Heritage Foundation’s Project 2025 roadmap says, point-blank, “Pornography should be outlawed”: “It has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. … The people who produce and distribute it should be imprisoned. … And telecommunications and technology firms that facilitate its spread should be shuttered.” 

A former Heritage Foundation fellow now sits on the FTC: Commissioner Mark Meador, one of the three Republican commissioners remaining at the agency after Trump illegally fired the Democratic ones. True to the Project 2025 vision, Meador told the conservative Washington Examiner that the Aylo settlement is just “the first step” in going after porn. “There’s a much bigger problem with even the quote-unquote ‘consensual’ pornography that’s out there,” he said, adding, “It poses a grave threat to children, but this is the first step that we could take under the powers that we have.” That is, the FTC is cannily using illegal CSAM and NCII to lay the groundwork for achieving the Project 2025 goal of banning all pornography.

And they won’t stop at porn. Before his confirmation as the current FTC chair, Andrew Ferguson promised to use his power to “fight wokeness” such as “DEI,” “ESG,” and “the trans agenda,” and to go after Big Tech companies for “engag[ing] in unlawful censorship.” In February, he launched an “inquiry” into that last topic (which is going just great), despite that being exactly the kind of government pressure on platforms that Republicans had decried as unconstitutional under Biden. It’s all part of the larger right-wing playbook against content moderation, which is best summarized by journalist Adam Serwer’s mordant adage that “free speech is when conservatives can say what they want and when you can say what they want.” 

That effort suffered a setback last year when the Supreme Court struck down two red-state laws that would have overridden social media sites’ moderation choices and forced them to carry content. In a rare unanimous decision, the Supreme Court held that the First Amendment protects online platforms’ decisions about which content to display and how. Nevertheless, since the 2024 election, multiple major platforms have backed off from their prior content moderation approaches, even though that’s not what users actually want. The pressure campaign worked; Big Tech bent the knee. Meanwhile, the Aylo order perverts that Supreme Court decision: If the government can’t outlaw platforms from having content moderation policies, how about it weaponizes those policies against them instead? 

In Counts I-IV, VI, and VII, the agency’s complaint against Aylo takes the position that imperfect content moderation is both an unfair and a deceptive practice: If a platform’s policies say “XYZ types of content are not allowed on our service, and we remove it and ban accounts that post it,” but some instances of such content nevertheless slip through and/or some non-compliant accounts remain, that’s a violation of Section 5 of the FTC Act. That is, it’s unfair for a platform to distribute certain illegal content to consumers, and it’s deceptive for it not to live up to its representations about what it does with content its policies prohibit. 

Of course, per Masnick’s Impossibility Theorem, content moderation at scale is impossible to do well. That means every platform (certainly every large one) will inevitably leave some content up and take some content down that its stated policies say it shouldn’t. Under the FTC’s theory, they’re all breaking the law. 

Again, it’s no coincidence that the FTC chose categories of content that are already illegal as a starting point. But there’s no limiting principle to the FTC’s theory; any “lawful but awful” content could be slotted in instead. What stops the FTC from alleging that it’s an unfair business practice for a short-form video app’s algorithm to unexpectedly display animal torture content (which is protected speech) to users? What stops the agency from alleging that it’s deceptive for a social media platform to contain perfectly legal pornography despite its stated policy to remove “sexual imagery”?

This isn’t even the first time an FTC settlement has claimed the power to police content moderation practices: the Biden FTC already did that last year when settling with a different platform called NGL, as Techdirt discussed at the time. The Commission is no stranger to pushing the limits of its authority, to put it lightly. But that impulse has become much more ominous now that we live in a country where Calvinball has replaced outmoded concepts like “arbitrary and capricious” and “selective enforcement.” 

In Calvinball America, Andrew Ferguson and Mark Meador can decide which platforms they want to target for mistakes every platform makes. This time, it was Pornhub’s corporate parent – which, to be fair, comes off terribly in the FTC’s complaint. (If the complaint’s awful allegations are true, why was this exclusively an FTC matter, not a DOJ criminal investigation? Where was the DOJ?) Next time, the FTC’s target may be a platform that has nothing to do with porn at all, but whose policies allow speech this administration disfavors or disallow speech it does favor. Or maybe the platform competes with a Trump-owned service, or it’s headed by someone who’s fallen out of Trump’s favor or isn’t enough of a bootlicker, or it refuses to sell Trump a stake of the business or pay him a bribe. 

Or maybe the reason will be pure pretext. The FTC could go after a platform for allegedly failing to follow its stated policies with respect to content the government couldn’t care less about, just because that serves as a convenient excuse to target it. We’ve already seen this dynamic in the punishment of universities ostensibly for not doing enough about antisemitism on campus, by an administration that’s rife with open antisemites in high-ranking positions. Even in the Aylo case, it’s hard not to smell a strong whiff of hypocrisy in the Trump administration’s supposed concern for children and sex trafficking victims.

This is exactly what Mike warned of when he dissected the FTC’s NGL order in July 2024: “Just think of whichever presidential candidate you dislike the most, and what would happen if they could have their FTC investigate any platform they dislike for not fairly living up to their public promises on moderation. It would be a dangerous, free speech-attacking mess.”

The Aylo settlement should be viewed as part of an ongoing attempt by the FTC to exceed its statutory and constitutional authority in trying to regulate platforms’ content moderation practices, now turbocharged under Republican leadership hellbent on exerting control over online speech more generally. No matter who’s President, the FTC does not have that power, any more than did the red states whose unconstitutional laws prompted that unanimous Supreme Court decision I mentioned. But by rolling over instead of challenging the FTC’s position, Aylo – like NGL before it – gave the FTC’s stance undeserved weight, which will bolster future agency actions against other platforms on the same theory. 

Sometimes, FTC targets have litigated instead of settling. In those cases, the FTC’s claims get tested through adversarial proceedings in a neutral court, creating case law that can serve as precedent for everyone. Fighting back is all the more important when there are major weaknesses in the FTC’s theory. Indeed, when private litigants sue platforms for allegedly not abiding by their content policies, they tend to lose (mostly). And when the FTC hit a journalism organization with a transparently retaliatory investigation earlier this year, the org sued the FTC and recently won a preliminary injunction. Still, faced with an intrusive and expensive federal government investigation, companies usually choose to settle rather than fight, even if they might have a strong case (and even after the Supreme Court killed court deference to agencies’ interpretations of their enabling statutes). 

Usually, settlements have no precedential value. What sets FTC consent orders apart from most settlement agreements in civil court, which do not bind anyone beyond the parties, is that the FTC is a regulatory agency and consent orders are a primary way it regulates. So long as they’re sufficiently specific, the allegations against the settling company put other companies on notice of what practices the FTC considers unlawful, and the conditions imposed in the consent order tell other companies what the agency thinks are good practices to follow. 

This is why the FTC’s settlement with Aylo will have ramifications beyond Aylo’s services. Other platforms – not just other porn sites, but other services that allow users to upload content (and thus run the risk that users will try to upload CSAM or NCII) – will look to the Aylo matter for guidance on how to stay out of trouble with the Commission. And what the Commission is signaling to all those platforms is that (1) if they say they moderate XYZ content, they’d better do what they say they do, and they might catch a deceptive-practices case if they don’t do it perfectly; (2) even if they amend their policies to remove any statements about content moderation, they can still get hit with an unfair-practices complaint if CSAM or NCII appears where consumers can see it; and (3) to keep CSAM and NCII off their services, the FTC expects them to affirmatively check whether any uploaded content is CSAM or NCII before making the content available, like it’s making Aylo do from now on.

This is how the Heritage Foundation pursues its goal of obliterating online pornography (good luck with that) and controlling what Americans say and hear online: by using the FTC’s powers to go after an unsympathetic actor for abhorrent content that’s not even protected speech. Having poked its hard-right nose into the free-expression tent, that camel will keep trying to nudge its way in. We can expect the FTC to keep expanding the categories of legal speech it deems “unfair” for platforms to show to consumers, and to use its “deceptiveness” theory to try to scare platforms into backing off even further from content moderation policies the GOP considers “censorship,” unanimous Supreme Court decision be damned. 

The FTC got its nose in the tent with consent orders. Consent orders aren’t an inevitable conclusion to an FTC investigation; they’re just the more popular option than litigating. Aylo (and NGL before it) decided to go along to get along. But that’s not how bullies work. Aylo’s deluding itself if it believes this settlement is going to satisfy agency commissioners who think pornography should be illegal, its producers should be imprisoned, and sites carrying it should be shuttered. Their ultimate goal is scorched earth, not a slap on the wrist. This is an agency that’s openly declared war on tech platforms and their supposed “censorship.” Whichever UGC platform gets targeted next had better understand the existential stakes and make a decision: do they want to be the next Media Matters, or the next CBS? Whether it’s the FTC or any other part of this government, appeasement is not the answer.