The United States Supreme Court last week ruled that a state age verification law is constitutional. As the Internet Society argued in a joint legal filing, the Texas law risks the privacy, security, and open nature of the Internet we all rely on.
In a 6-3 decision, the Court said state governments can limit children’s access to online adult content by requiring age verification for everyone. This is the key issue where the Court splits in the case, Free Speech Coalition v. Paxton.
“The power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content,” Justice Clarence Thomas wrote for the majority.
The minority opinion does not support mandatory age verification if there are less intrusive options. “The State should be foreclosed from restricting adults’ access to protected speech if that is not in fact necessary,” Justice Elena Kagan writes.
Few dispute that online safety must be improved for children. The challenge is that unlike a quick, anonymous glance at an ID in a store, online age verification can create a permanent digital record of who you are and where you go on the Internet. There are significant new risks and barriers for everyday Internet use.
Privacy and Security Concerns
People in more than 20 US states will now be required to complete age verification checks that can expose sensitive data like financial records, government IDs, or browsing activity. More states are likely to adopt similar laws for adult content or social media, and countries around the world are implementing similar requirements.
Under the Texas law, people will be required to link to a digital ID, upload a government ID, or authorize a temporary credit card charge. The state law also permits “commercially reasonable” methods that check an individual’s identity using public or private records, such as education or employment history.
These requirements force people to link their real-world identity to online activity and expand the collection of personal information. This will create substantial privacy and security risks. New datasets of personal information will be prime targets for breaches and people will be at greater risk of having their sensitive browsing history revealed and used for surveillance or blackmail.
This increased tracking and data collection will have a significant chilling effect, deterring adults from accessing health education and entertainment content for fear that their activity could be monitored and disclosed.
Access and Open Internet Concerns
Age verification rules can also obstruct access for people who don’t have required forms of ID, payment methods, or the ability to complete other authentication measures. This puts marginalized communities at the highest risk.
Many people have concerns about being tracked across the Internet. That is particularly true for people vulnerable to hate, harassment, ridicule, stigma, or whose personal security is at risk.
Many people also won’t have a suitable ID or financial account for verification. They may not have a working web camera or other features on older or less reliable phones or computers to complete other forms of age checks like a facial scan or hand gesture.
Global Impact
The ruling risks cutting people off from online services they rely on and further fragmenting an open Internet. Governments have different interpretations of what content and services should be available and what age verification process people must complete.
Many US states passed online age verification laws, especially for social media and adult websites. The Texas law in this case, H.B. 1181, applies to both types of services if more than one-third of content is “sexual material harmful to minors.” This definition could be interpreted in different ways depending on cultural and political beliefs.
Globally, governments are increasingly turning to age verification to restrict access to certain content on the Internet. The United Kingdom will enforce age verification rules for adult websites in July under the Online Safety Act. France plans to require a credit card or government ID to access adult content, but those rules are under a legal review. Australia is moving forward with a social media ban for children under 16 with age verification requirements under development ahead of a December deadline.
While governments around the world are passing and implementing laws to verify users’ age, that doesn’t mean the methods are safe, secure, or effective at addressing online safety concerns.
How to Take Action
As governments around the world consider and implement age verification requirements, the Internet Society community can help inform policymakers of risks and provide guidance on less intrusive age check and safety measures.
The fight to protect a private, secure, and open Internet is not over. We must insist that any age verification system adheres to core Internet principles. That includes:
- Minimizing Data: Collect the minimum amount of data needed and never retain identifying data.
- Preserving Anonymity: Allow people to access legal content without forcing them to link their identity to their online activity.
- Accessibility for All: Do not rely on verification methods that some people don’t have access to, such as government IDs or financial accounts. Make checks accessible by design for people of all physical and mental abilities.
- Empowering Users: Invest in digital literacy tools that give users, including parents and children, more control over their online experience.
- Technical Standards: Open standards for adult content self-labeling and user preferences for mature content can keep children away from inappropriate content without privacy or accessibility concerns.
We must advocate for technical solutions and policies that protect children without compromising the fundamental rights of adults and the open and interoperable nature of the global Internet.
Learn more about our Amicus Program where we seek to give the Internet a voice in the courts.
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