Age-verification methods, in their current forms, threaten our First Amendment right to anonymity
Since the early history of the United States, Americans have enjoyed the right to anonymous speech. The First Amendment protects this right, and the Supreme Court has long recognized it. The tradition dates back even farther than the anonymous signers of the Federalist Papers in the 1780s and includes a unanimous Supreme Court case decision in which it was ruled that the National Association for the Advancement of Colored People (NAACP) did not have to disclose names on membership lists to Alabama officials in 1958. In the two years following the NAACP ruling, the Supreme Court extended the right to include giving out pamphlets without authors’ names. In a 1995 case, Justice Clarence Thomas wrote in concurrence stating that “[a]fter reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion.”
This idea also applies to internet message boards, where anonymous speech is also protected. In the past, companies would often subpoena platforms to reveal the identities of anonymous users. Eventually, courts developed “rigorous tests” that ensured that only plaintiffs who had the strongest cases were allowed to use subpoenas to obtain identifying information about platform users. For example, in 2005, Delaware Supreme Court justices rejected a city council member’s effort to identify an anonymous critic, writing that “[a]nonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering.”
With currently proposed legislation and laws, age-verification methods from facial recognition to providing one’s government ID or home address threaten to destroy the possibility of remaining anonymous online (to the degree that is currently possible). And the technology used to verify age ends up verifying more than age. Facial scanning provides a picture or video. Government IDs verify more than just the age of the person logging in, and they cannot account for the possibility that the person logging in could be a child misusing their guardian’s ID. Furthermore, if a person has to verify that their child really is their child as part of parental consent verification, then that adult’s information will be disclosed, too.
Importantly, virtual private networks (VPNs), which will be discussed in detail later in this series, can be used to circumvent age-verification laws by making users appear to be located outside of a specific law’s jurisdiction. Because VPN use cannot always be detected—even by Netflix, which is notorious for aggressively blocking VPN traffic—one may think it would be wise for websites to maintain lists of users’ IP addresses to prove their attempt to comply with the law. With this idea, if an underage user in the law’s jurisdiction used a VPN to appear as though their traffic originated from a different jurisdiction, the website may want to maintain proof that the IP address was outside of the law’s jurisdiction for compliance reasons. However, collecting IP addresses to comply with the laws would constitute an incredible security risk, as IP addresses not only reveal the user’s location but also the online services for which the user has registered, which could mean additional identifiable information is stored, such as “[p]ersonal interests, based on websites visited,” “[o]rganizational affiliations” and locations they have visited physically. When this type of data is collected and stored, it can increase the risk that individual users of anonymous accounts could be identified.
Age-verification mandates could also implicate the rights of individuals with the concept of the “chilling effect” in court. This effect occurs when people voluntarily filter their speech due to laws and can cause courts to overturn these laws that cause the “chilling effect.” As a federal court wrote in an opinion in Doe v. 2theMart.com, which upheld the right to anonymous speech, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” And the court in American Civil Liberties Union v. Gonzales wrote that age verification via financial or other invasive methods “will deter listeners, many of whom will be unwilling to reveal personal and financial information in order to access content and, thus, will chill speech.”
Further, for those who may compare using the process of online age verification to in-person methods of restricting material to certain ages, the analogy falls short. Indeed, various laws do prevent adult stores that sell pornography or similar material from allowing those under the age of 18 onto their premises, but the Third Circuit of the U.S. Court of Appeals illuminated why that comparison is not apt in American Civil v. Mukasey, noting that blinder racks “do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record.”
Finally, there are normative reasons for protecting the First Amendment right to anonymous speech and association. Aside from pure constitutional protections, anonymity is an important tool for anyone supporting anything unpopular or contentious. That was precisely why the NAACP fought to keep its membership lists private and why Alabama state officials sought to reveal those members. Moreover, anonymous whistleblowers have been key in the global #MeToo movement, and one only has to look at examples of cancel culture to understand the need for anonymous speech.
Some people who are less inclined to see the benefits of anonymity often point to mean, anonymous trolls. However, some evidence suggests that online trolls may actually be meaner when not anonymous.
The right to speak anonymously is a core part of our fundamental right to free speech. As with all our fundamental rights, legislation that threatens them needs exceptionally careful consideration. Otherwise, laws risk being overturned or—even worse—upheld and continuing to infringe on basic civilian rights.
This is part of the series: “The Fundamental Problems with Social Media Age-Verification Legislation.”