The increasing pressure to regulate children’s use of technology in the United States begs the question: is childproofing the Internet constitutional?
In response to significant political pressure stemming from alarming revelations about young people’s experiences with digital technologies, a wave of state legislation has recently swept across the US. They tackle a variety of online harms that affect children, ranging from exposure to pornography and risky content to manipulative design and social media access.
Most newly passed state laws have already been challenged, and those challenges are working their way through the legal system’s appeals processes. In 2024-2025, the U.S. Supreme Court will review the constitutionality of a Texas law requiring porn sites to block underage users in Free Speech Coalition v. Paxton.
READ MORE: The Supreme Court refuses to block a Texas law that requires pornographic websites to verify the age of users
The controversy made its way to the Supreme Court after a federal district court found the law violated the First Amendment, but the 5th U.S. Circuit Court of Appeals overturned the lower court’s decision. The 5th Circuit ruling compared the new law to laws banning the sale of pornography magazines to minors in the 1960s, which were declared constitutional.
Meg Leta Jones
While the court considers the Texas law, the U.S. House will consider the Kids Online Safety Act, known as KOSA, and the Children and Teens Online Privacy Protection Act, also known as COPPA 2.0, because they affect Children’s Online Update Privacy Protection Act of 1998. , COPPA. KOSA addresses addictive design features and parental controls, and COPPA limits data collection and use. Senate leaders merged the two into KOSPA, which passed by a vote of 91 to 3.
Age dependent
All of these laws require platforms to treat children differently than adults, and thus require platforms to know who is a child and who is an adult. This practice is called age-gating and involves a number of methods.
Meg Leta Jones
The old COPPA 1.0 added restrictions, responsibilities, and liabilities for sites that targeted children or sites that knew a user was under 13. Most sites get around the law’s restrictions and requirements by simply including language in their terms of service that prohibits people under the age of 13 from having an account. Others, like Facebook, eventually went further and asked the user to enter their age or date of birth. Children learned long ago to bypass the virtually meaningless barrier.
The new wave of laws requires more, using one of two age-restriction options: inference and verification. To infer age, the platforms make an educated guess by using data generated by the user, either through biometric scans of the face or voice, or by analyzing the data the platforms already collect for targeted advertisements. Age verification involves relying on evidence that has already been verified by another institution, such as a government ID or credit card.
WATCH: The bill aimed at protecting children online has led to discussion about censorship and privacy
Although the inference method poses significant privacy concerns, age restriction proponents argue that age verification at the operating system or browser level is effective and does not burden users or compromise their privacy.
The last time the constitutionality of age-restricted internet came before the Supreme Court, the law did not survive. In 1997, in Reno v. ACLU, the Supreme Court struck down provisions of the Communications Decency Act enacted to protect children from exposure to explicit material online because they lacked the precision necessary to narrowly address unprotected speech. Congress made some adjustments and tried again with the Children’s Online Protection Act, not to be confused with COPPA, which also ultimately failed, but under a very divided court.
Meg Leta Jones
3 questions
Although the constitutional analysis, technology and associated research are quite complex, the outcome depends on answers to three main questions.
To restrict sharing or access to content, the government must have a good reason. The first question to be asked is therefore whether the harm to children is really that great and whether the contested law mitigates the harm. Laws sometimes fail this test.
READ MORE: Instagram introduces private teen accounts amid mounting criticism over security
Just as in 2011, when the Supreme Court scuttled California’s attempt to ban the sale of violent video games to minors, Utah’s efforts to restrict children’s access to social media recently stalled after the government moved in district court. could not be convinced that there is a compelling link between mental health problems in young people and social media.
Meg Leta Jones
The second question is whether restrictions and obligations regarding children place a burden on speakers and seekers who have legitimate rights to share and access information freely. While the 5th Circuit sidestepped this issue by relying on the constitutionality of laws requiring presentation of ID to access offline pornography, other courts have gotten technical. For example, Arkansas’ Social Media Safety Act was left out because the court ruled that adults would be prevented from creating accounts if doing so involved presenting ID or biometric scans.
This question may come down not only to the technical reality or potential of age restriction, but also to user experience research.
Meg Leta Jones
The third question is whether alternatives, namely parental controls, work better and leave adult access unhindered. While some parents and policymakers maintain that parental controls have not worked to protect children, given the new wave of age restrictions, lower courts have concluded that parental controls remain superior options for addressing online harm to children, just as it Supreme Court did twenty years ago.
Meg Leta Jones
No one knows how the Supreme Court will answer these three questions this time. So much has changed. The court has changed, the technology has changed, the research has changed, childhood has changed. If age restriction laws are upheld as constitutional, more major changes are likely to follow.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
