In OPPOSITION to A 5750, “An Act requiring age verification and parent or guardian consent for a minor’s use of a social media platform”
Chairman Conaway and members of the Health Committee:
My name is Josh Withrow, and I am a fellow with the Technology and Innovation policy team at the R Street Institute, which is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including the technology and innovation sector.
While the concerns surrounding the negative impacts of social media on children and teens is understandable, we are concerned that Assembly Bill 5750’s age verification and parental notification mandates will unduly burden access to social media platforms for adults and minors alike. These mandates are likely to be unworkable and unpopular, and would be held as unconstitutional.
A 5750 specifies that a social media platform must verify the age of its users in order to prevent anyone under the age of 18 from creating a profile (or logging into one that existed previously) without parental or guardian consent. This approval would be affirmed by government identification and by providing a credit card.[1]
One of the fundamental problems with this kind of mandatory age verification is that it undermines users’ right to anonymous or pseudonymous speech, which in turn has the effect of dissuading users from speaking freely, or even initially joining a platform.[2] Sites obviously can’t know for certain whether a given user is a minor or not without checking the age of all users, so this necessarily burdens the access to their services for all users alike, adult or child. For these reasons, courts have repeatedly struck down previous attempts to mandate age verification for general-use platforms. It is worth noting that the definition of a social media platform in this bill would likely cover more than sites like Facebook, TikTok, and YouTube; as written, gaming platforms such as Steam and perhaps even services like Yelp or Waze could qualify.
In a landmark case, the U.S. Supreme Court struck down most of the Communications Decency Act of 1996 because its age verification requirement for websites posed an undue burden on adult access to speech.[3] The Court explicitly noted that, “Using credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that would require many of them to shut down.”
A few years later, a second federal attempt at mandatory age verification, the Child Online Protection Act, was struck down because it violated the right to anonymous speech and because other, less-restrictive means to accomplish the same protections were easily available, such as third-party content filtering software.[4] Most recently, an Arkansas bill that required parental notification and age verification for minors to access social media has been enjoined by the courts and appears destined for a similar outcome to the prior cases.[5]
Moreover, the ability of minors to access non-obscene content without parental consent has been upheld as a First Amendment right in itself, and that right carries through to internet services. Justice Antonin Scalia, in striking down a California law that required parental permission for minors to buy violent video games, noted that “whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Scalia continued: “[i]t does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.”[6]
Mandating age verification tied to sensitive personal documents also creates novel data privacy and security concerns, as covered platforms would have to process and store credit card numbers, drivers license and social security numbers, and birthdates. The threat of penalties for non-compliance with age restriction mandates creates a perverse incentive for online platforms to store more of this information, and for longer than they would otherwise, providing a tempting honeypot of sensitive data for hackers to target.[7]
There are other practical issues with a parental notification requirement, such as the difficulty in ascertaining whether the person providing the permission is actually the minor’s parent or legal guardian, especially if the minor comes from a non-traditional family situation. For minors who have absent or abusive parents, access to social media may be a beneficial outlet which could be denied to them by neglect.
Forcing parents who do want to give their kids access to internet platforms to provide an ID and credit card is also likely to be extremely unpopular in practice. A poll run by the Center for Growth and Opportunity at Utah State University shows that two thirds of respondents were uncomfortable with sharing ID documentation to access social media sites.[8] Of course, the bill also assumes that a parent or guardian has a valid government ID, which remains untrue for millions of Americans.[9]
A better approach to protecting children and teens from the very real dangers they may encounter online would be to focus on education – both of kids themselves and their parents. The tools necessary to prevent minors from accessing unwanted sites and apps are easily available at the device, browser and even network level.[10] This includes the ability to take smart precautions like limiting who can contact a minor from outside their social network, as A 5750 would mandate. But no level of parental controls and safeguards can replace basic education and communication so that kids – many of whom will inevitably outsmart whatever restrictions are placed upon them – can learn how to engage with the online world safely and responsibly.
Josh Withrow
Fellow, Technology & Innovation Policy
R Street Institute
(540) 604-3871
[1] A5750, An Act requiring age verification and parent or guardian consent for a minor’s use of a social media platform and supplementing Title 52 of the Revised Statutes, New Jersey General Assembly. https://www.njleg.state.nj.us/bill-search/2022/A5750
[2] Shoshana Weissmann, “Age Verifications Methods in Their Current Form Threaten Our First Amendment Right to Anonymity,” R Street Institute, June 1, 2023. https://www.rstreet.org/commentary/age-verification-methods-in-their-current-forms-threaten-our-first-amendment-right-to-anonymity/
[3] Reno v. ACLU, 521 U.S. 844 (1997), U.S. Supreme Court, June 26, 1997. https://supreme.justia.com/cases/federal/us/521/844/
[4] Ashcroft v. ACLU, 542 U.S. 656 (2004), U.S. Supreme Court, June 29, 2004. https://supreme.justia.com/cases/federal/us/542/656/
[5] Eric Goldman, “Two Separate Court Reiterate That Online Age Authentication Mandates Are Unconstitutional,” Technology & Marketing Law Blog, Sept. 19, 2023. https://blog.ericgoldman.org/archives/2023/09/two-separate-courts-reiterate-that-online-age-authentication-mandates-are-unconstitutional.htm
[6] Brown et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011). U.S. Supreme Court, June 27, 2011. https://supreme.justia.com/cases/federal/us/564/786.
[7] Shoshana Weissmann, “Age Verification Discourages Data Minimization Even When Legislators Don’t Intend To,” R Street Institute, May 24, 2023. https://www.rstreet.org/commentary/age-verification-legislation-discourages-data-minimization-even-when-legislators-dont-intend-that/
[8] Taylor Barkley, “Poll: Americans Don’t Want to Share Their Photo ID to Tweet,” The Center for Growth and Opportunity at Utah State University, Feb. 1, 2023. https://www.thecgo.org/benchmark/poll-americans-dont-want-to-share-their-photo-id-to-tweet.
[9] “UMD Analysis: Millions of Americans Don’t Have ID Required to Vote,” Maryland Today, April 13, 2023. https://today.umd.edu/umd-analysis-millions-of-americans-dont-have-id-required-to-vote
[10] For an extensive list of available parental control and screen time tools, see “Children Online Safety Tools,” Competitive Enterprise Institute, last accessed Nov. 15, 2023. https://cei.org/children-online-safety-tools.