EFF: Age Gating Prevalent, But Confusion and Consistency Issues Linger
Though age gating is increasingly prevalent, laws regulating it vary widely from state to state, and courts haven't fully addressed their legality, said Corynne McSherry, legal director at the Electronic Frontier Foundation (EFF).
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At least 25 states have some version of an age-gating law or regulation, but “they’re all over the place” and “very, very different,” she told a Practising Law Institute event Wednesday.
An age gate is the most basic tool, usually using self-attestation. Age assurance “puts [more] obligations on service providers to assure themselves of the age" of a person visiting their site, McSherry said.
Age estimation, where a system “guesses your age based on your voice, maybe a photo, [or] your behavior profile," is where things start to get "creepier and creepier,” she said. Last is age verification, where people prove their age “by uploading an ID, maybe [a] credit card [or] biometrics.”
Priorities collide as concerns about social media's effect on kids and teenagers battle age verification's potential for causing "collateral damage,” McSherry said.
A “basic problem is privacy.” As data breaches occur daily, there's "real concern” that age-gate information “is not going to be kept secure." This means “plenty of people” are going to say, “'I don't want to risk my privacy, I'm not going to do it,'” which can also “inhibit” speech.
“There have been a lot of legal challenges” to the laws, including from EFF. The U.S. Supreme Court’s decision in Free Speech Coalition v. Paxton was “controversial,” she said, and also used “sleight of hand” when ruling that the First Amendment doesn't protect people from age verification (see 2506270041).
The high court's ruling “sidesteps … the point,” as “adults aren't worried about avoiding age verification,” they're concerned about “the burden on their ability to access speech that is lawful for them.”
But Paxton was also “limited” in that it only ruled in the context of “restricting minors' access to sexual material that is obscene to them,” McSherry said, so it shouldn't apply beyond that.
More recently in CCIA v. Uthmeier, the 11th U.S. Circuit Court of Appeals, on a 2-1 vote, lifted a block on a Florida law prohibiting kids 13 and younger from creating social media accounts and requiring parental consent for 14- and 15-year-olds to create them (see 2511260042).
But the “lengthy” dissent addressed many burdens the majority ignored, including privacy and access to speech. The dissent said that to obtain parental consent, "a child would have to upload information" about its parents. As such, "parents are automatically getting pulled into this,” which also is a privacy issue.