Regimes that run age verification through the government would allow prosecutors to make children federal criminals if they lie about their age

As already discussed in this series, the Protecting Kids on Social Media Act would create a pilot program, run by the U.S. Department of Commerce, for use by social media companies that opt in to verify the age of users. And it’s expected that at least some—likely many—underage users will lie about their identity in order to access age-restricted content. But if they lie, they’re violating federal law.

First, it’s important to note that similar charges are not regularly pursued against children, and the same may be true here if this legislation is enacted. That said, considering unintended consequences of legislation is important in case that ever changes. If laws are in effect and can be used to punish people, they may be applied that way in the future. This is particularly important because the existing norm is for minors to lie about their age—often with parental permission—in order to access social media or other services. Criminalizing a norm in this way in turn criminalizes broad behavior and undermines the rule of law. This alone doesn’t mean it cannot or should not be done, but it does warrant deeper consideration and acknowledgment of these consequences.

Federal law states that anyone who “makes any materially false, fictitious, or fraudulent statement or representation” … “within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully” will be fined or imprisoned for up to five years. Therefore, in their efforts to protect children, legislators could make them federal criminals instead.

In a conversation with Clark Neily, Senior Vice President for Legal Studies at the Cato Institute, he explained to R Street how this would work and what the implications would be. Because the user would be representing their age to a federal agency, misrepresentation of age would constitute a violation of the federal false statements statute. And while Neily said that one could come up with arguments as to why it may not constitute a violation, he would be skeptical about the prospects of such a defense before a judiciary that generally sides with the government over defendants whenever there is a close call in criminal cases.

“The federal judiciary is disproportionately composed of former prosecutors and other courtroom advocates for government, and the government-favoring effects of that imbalance are especially pronounced in criminal cases,” Neily noted.   

He explains that, from a pragmatic standpoint, if someone is charged under the federal false statements statute for falsifying age-verification information to the Department of Commerce, they are likely to do what the vast majority of criminal defendants do today: waive their right to trial and simply plead guilty, whether they are or not.

“In a relatively low-stakes case like this, defendants would almost certainly be given slap-on-the-wrist plea offers,” Neily said. But laws on the books can always be enforced, and dragging someone through the criminal justice system still leads to lifelong negative outcomes. 

And this would hold true if the Department of Commerce contracted out its age-verification duties. The controlling law here applies to false or fraudulent statements or representations within the “jurisdiction” of the executive branch. As a district court explains in United States v. Litvak, “[t]o be within the jurisdiction of an agency or department of the United States government means that the statement must concern an authorized function of that department or agency.” This can also apply to private companies carrying out agency functions. 

Some may be skeptical that children would be held accountable in court for violation of laws meant to protect them. However, consider examples around the common practice of teen “sexting.” Of course an adult holding child exploitation material should be charged, and children should be educated about the risks and dangers of sexting. However, teens exchanging sexual images of themselves with one another can sometimes get caught up in laws intended to prevent abuse and exploitation. One teen was placed in solitary confinement for a month for sending sexual images of herself. In Maryland, another teen was charged with distributing child exploitation material and imprisoned for distributing a sexual video of herself—ultimately deemed “the victim of and the offender in her own case.” Other examples of teens trading consensual sexts and then being charged with crimes exist in North Carolina and elsewhere.

This is the danger of having laws on the books that can be used this way. They can always be enforced, even if we don’t anticipate that they will be enforced right now. As seen here, children can be prosecuted in bizarre ways. If lawmakers pass legislation that can similarly make minors into criminals, they must be prepared to accept and defend that outcome. More to the point, turning America’s children into federal criminals in the name of protecting them would be a clear policy and moral failure. 

This is part of the series: “The Fundamental Problems with Social Media Age-Verification Legislation.”