State Legislatures Keep Losing the Battle on Online Age Verification
That doesn’t mean they will stop trying. Going back to the 1990s and the Communications Decency Act, and then the Child Online Protection Act in 1998, the Supremes keep saying that it is not the government’s role to regulate speech. Of course the government only tries to regulate speech that is unpopular, whether it is political speech and social media or adult content or whatever.
Mind you, I am not against restricting access to harmful content – whatever you think is harmful – but that is between a parent and a child, not the government and a parent.
Arkansas Act 689 requires that minors need parental consent before creating a social media (say Facebook) account, but the law doesn’t even effectively define who qualifies as social media. Snapchat thought that they would be exempt, but one of the sponsors said, no, they were included. The court said that is too vague. Even the state’s own expert could not adequately define it.
And how do you figure out who is a parent. Since, say, a fifteen year old, who likely doesn’t have a state issued ID, how do you even figure out who they are? And parents these days often don’t have the same last name as a kid. And with divorced parents, do they both need to agree one way or the other? Likely the solution that social media sites will opt for is just to deny anything unless it is super obvious. And, of course, there is no market for fake IDs.
The law says that a person of ordinary intelligence should be able to figure that out, but the judge disagreed with the state, so, I guess, the judge is of sub-par intelligence.
The law, in talking about social media, makes a reference to the site’s substantial function, whatever that means.
California’s definition of social media included all digital data, even if stored on a hard drive. Isn’t all digital data stored on a hard drive? That is where data is stored, after all. Or are they making a distinction between a rotating hard drive and solid state storage. There is no drive for solid state storage, so if the web site uses solid state storage (all do), are they exempt?
And, I am sure that a repository of a billion or five billion digital identities would not be of interest to hackers. Who fixes that damage WHEN not IF that happens.
The court says that the act bars minors from opening accounts on a variety of social media platforms that contain constitutionally protected speech, hence even with a loose definition of the law, it is unconstitutional.
The state argued that YouTube is harmful. While there is lots of garbage on YouTube, most of the garbage is protected by the Constitution. And, a lot of schools require kids to watch specific YouTube content, so I guess schools will have to go back to old way of teaching – blackboards and overhead projectors? But the good news is that there would be less homework since kids would not be allowed to go online to do their homework. Is a school’s student platform a social media site? Certainly possible.
With regards to Texas’ HB 1181, the state went to the 5th Circuit to appeal the ruling by the district court overturning that law. The 5th Circuit stayed the overturning of the law, but they did not give any reason as to why they did that – just because. Like with NetChoice v. Paxton, these plaintiffs will likely go the the Surpremes’ shadow docket to overturn that unexplained decision. A court can’t just say “BECAUSE!”.
This debate is far from over. Some people would like to turn back the clock to 1950 – when kids had to go to the corner newsstand to buy porno and many newsstands were perfectly willing to sell it. (Today’s version is to steal someone’s credentials – I am sure most kids can figure out how to do that).
I don’t have a good solution, but eliminating anonymous access by U.S. citizens to lawful content by the state is likely unconstitutional.
Once you have identified the person, by name, address and government ID, who is accessing the content, whatever that content is, that data is extremely valuable to all sorts of people. It would be foolish to think that websites and ISPs are just going to trash that data immediately. For one thing, that data will be part of their defense in case of a lawsuit.
We have already seen way too many cases where insiders have figured out how to make a nice side income, tax free, by selling that data to all sorts of people. And, I am sure, that law enforcement would love to have that data as part of their pre-crime programs. Pre-crime is valuable, right?
Yes, it is a mess and yes, it would be nice if there were a simple answer, but it is harder than that. Given the level of technical expertise of many legislators (these are the same people who had to get their interns to start their Zoom calls during the pandemic), it is unlikely that they will think outside the box when what they are doing, predominantly, trying to attract votes.
After all, who is against protecting the kids.
This article is based on a blog post by Professor Eric Goldman from the Santa Clara University School of Law. Professor Goldman is the Co-Director of the High Tech Law Institute and supervises the Privacy Law certificate. His blog post goes into a lot more detail if this is a subject of interest to you. You can find the blog post here.
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