Age verification laws face mixed prospects, experts say

States’ efforts to implement age verification laws have been in the news a lot recently, as lawsuits to stop such measures have proceeded or begun against South Carolina, Tennessee, Ohio and others, while Louisiana’s was blocked late last year.

NetChoice, the industry group challenging state laws that rely on age verification technology to restrict minors’ use of social media, has achieved victories in Arkansas and previously in Ohio.

But amid the apparent legal opposition to those pieces of legislation, one notable law was upheld by the U.S. Supreme Court, which ruled last year that Texas could require age verification in a bid to prevent minors from accessing adult content online. Experts warned at the time that the decision could create a “pornography exception” to First Amendment protections to access speech, even as Justices argued that states have the authority to shield children from explicit content.

And while the effects of that 6-3 decision are yet to be felt, panelists said during the State of the Net conference in Washington, D.C. recently that it remains a tricky issue, given the nature of the internet and what can be accessed.

“Besides pornography, I don't view everything that happens online as speech,” said Ariel Fox Johnson, a senior advisor at nonprofit Common Sense Media. “There's a lot of products. These are where kids are playing and where they're spending time, and have product safety regulations and product safety tools, and the laws targeting product features or laws require more privacy protected defaults… If everything is speech, then we can't have any protection for kids online.”

The legislation and following lawsuits have once again put age verification technology under the microscope, especially as those bills rely on the technology to prevent minors from accessing inappropriate content. Those efforts are popular with the public, according to various polls. Common Sense found this month that more than 60% of adults support using age verification for social media and online games, while more than half support its use for artificial intelligence products, including chatbots and AI companions.

Despite that support, many bills mandating the technology’s use for access to internet content have been struck down or otherwise challenged in court. Given the apparent long odds of eventual success in the face of legal scrutiny, some questioned why states are still trying to pass such legislation when precedent has been set in the courts.

“In some ways, you try different things, but at the same time, how much taxpayer money and time are you going to waste getting told it's probably not constitutional, and then the next state passes, and the next?” said Jessica Melugin, director of the Competitive Enterprise Institute, a nonprofit libertarian think tank. “You could pick one state, let them try it, and see if you can do it. We're spending a lot of time here in court, and there’s a consensus, and [the Texas law] is the exception.”

Others said states should continue to try and push the envelope with this legislation, especially as it has noble aims like protecting children from the worst of the internet. 

Jon Schweppe, a senior advisor at the American Principles Project, a political advocacy group, called on states to “legislate to their hearts’ content” on these issues, and look to write good bills that can stand up in court.

While some age verification bills are being struck down, other social media bills have had some success, especially around how the platforms are designed and how they use algorithms to push content. New York, for example, is in the midst of rulemaking to implement its Stop Addictive Feeds Exploitation for Kids Act, known as the SAFE for Kids Act, which looks to protect children from social media algorithms and put in place rules on their use.

“There are some successes outside of the pornography context for lawmakers trying to protect kids,” Fox Johnson said. “[I] think we're starting to see some things that are sticking, and we're moving into the practical and not just the theoretical.”

One ongoing debate is around the nature of age verification technology itself. It takes many forms, including by having users submit personal documents for identity checks, or by using AI for facial estimation, where it analyzes someone’s selfie to assess their age. But recent research out of Carnegie Mellon University found that most users surveyed were uncomfortable with every form of age verification aside from checking a box, and less than 30% completed the process to upload a government-issued ID to verify their identity.

Schweppe said it shows that age verification needs a range of options online to be effective, and that it should not be onerous but instead an “incidental burden.”

“People were generally pretty skeptical,” said Sarah Scheffler, an assistant professor at Carnegie Mellon who worked on the study. “None of the methods had more than half the users say, ‘We think that this method is at least somewhat effective at keeping children from accessing.’ At least in the study we did, we found a lot of discomfort. We found a lot of users predicting that this would be pretty ineffective and very low completion rates, especially for the government ID methods.”