Arizona age-verification bill raises serious speech and security concerns
The Arizona state Senate was poised to jump on the age-verification bandwagon after a committee advanced House Bill 2991. Fortunately, as the legislative session winds to an end and the budget takes priority, an amended version of the bill appears to have stalled. Based in part on a controversial and legally uncertain law in Florida, the Arizona bill requires online platforms and mobile operating systems to verify the age of all users in an attempt to limit kids’ access to allegedly “harmful” online materials.
No one wants kids to access pornography or other genuinely harmful content, but the measure is deeply problematic because of its implications for Arizonans’ free-speech rights and their online security. From a speech perspective, these broad-brush age-verification requirements have generally run afoul of the federal courts, as they do not comply with the strict scrutiny standard that is applied to restrictions on Americans’ speech rights. And, yes, the First Amendment applies to young people.
As the Foundation for Individual Rights and Expression (FIRE) explains, under that standard “lawmakers must demonstrate the existence of a real problem and prove that restricting speech is necessary to solve it. And if less restrictive alternatives are available, those must be used instead.” Age-verification laws are more of a nuclear option — limiting broad groups of Americans’ access to information rather than finding precise, tailored options to address the specified problem.
Last year, in a ruling imposing a preliminary injunction on the Florida law, federal Judge Mark Walker found that its “restrictions are an extraordinarily blunt instrument” and that it “prohibits a substantial amount of protected speech.” Another panel allowed the law to go into effect—and the matter continues to wind its way through the courts—but Walker captured the recurring problem with these types of bills: Government should not be empowered to decide what content Americans can view.
The latest language in Arizona strips out privacy protections and makes some other changes, but the crux of these bills is always the same: They require companies to collect the ages of all online users. They impede individuals’ rights to access information. They undermine parental authority. Companies already offer a wide range of parental controls and filters, which continue to improve to meet demand. That is the best way to truly protect children: encouraging the development of these features.
Practically speaking, age-verification laws are counterproductive. “[I]f onerous requirements are forced onto social media platforms, minors will quickly shift their use to sites at the fringes of the internet, circumventing the protections the law aims to establish,” argued the trade group NetChoice in its letter opposing an earlier version of HB 2991. Furthermore, such laws inadvertently provide risks to Americans’ online security, as they require the third-party collection of sensitive information. In a world where data breaches are a common occurrence, this is a serious concern.
Rather than follow Florida’s model and plunge Arizona into a years-long federal court battle over the First Amendment, Arizona lawmakers should, as my R Street Institute colleague and tech expert Josh Withrow explained regarding a similar bill, focus “on ways to improve online literacy, both for parents and their children, and encouraging parents to exercise the substantial power they already have to control what content and interactions their kids can access online.”
We still need to pay careful attention to any last-minute developments in Arizona, but for now it looks like the state is more likely to do the right thing.