Testimony in Opposition to Missouri HB 2157 – Mandatory Age Verification for Social Media
Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute
In OPPOSITION to HB 2157, “To repeal section 160.261, RSMo, and to enact in lieu thereof fourteen new sections relating to safety of minors on the internet, with penalty provisions. ”
February 6, 2024
Missouri House General Laws Committee
Chair Riley, Vice Chair Hicks, Ranking Minority Member Ingle, and members of the House General Laws 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 are understandable, we caution that HB 2157’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.
That being said, we do applaud the bill’s initial focus on securing online activity at schools and including education about social media and internet use in the school curriculum. We believe that education of both minors and their parents about both the benefits and dangers of social media, and the ways that internet use can be made safer for kids, is crucial to developing healthy, responsible youth in the digital age.
Unfortunately, the section of the bill titled the “Children’s Internet Safety Act” goes a step further and places the state in the role of making decisions about social media access that ought to be reserved for parents. The text states 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.[1] Defining the means by which age and parental verification can be verified is left to the attorney general’s office, but identifying a parent or guardian is most likely to require providing the social media platforms with a government ID or some other form of documentary verification.
One of the fundamental problems with 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.
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] Their reasoning was that privately available software was as effective, if not more so, in protecting against minors accessing obscene content. This is even more true today, where effective parental controls are built into nearly every device and online platform, and there is a thriving market for effective, affordable third-party parental control software.[4]
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.[5] 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.[6]
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.”[7]
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.[8]
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 their identification 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.[9]
Finally, HB 2157 creates a private right of action to sue social media platforms for damages “for any addiction, or financial, physical, or emotional harm suffered as a consequence of using or having an account on the social media company’s social media platform.” These terms are so subjective and vague that there is no way for these platforms to have any idea how to comply with them and will open the floodgates for frivolous litigation.
The better approach to protecting children and teens from the very real dangers they may encounter online would be to focus on education – as the first half of this bill does, to its credit. The tools necessary to prevent minors from accessing unwanted sites and apps are easily available at the device, browser and even network level.[10] 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
[email protected]
[1] HB 2157, To repeal section 160.261, RSMo, and to enact in lieu thereof fourteen new sections relating to safety of minors on the internet, with penalty provisions, Missouri House of Representatives. https://house.mo.gov/Bill.aspx?bill=HB2157&year=2024&code=R
[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] “Child online safety tools,” Competitive Enterprise Institute, https://cei.org/children-online-safety-tools/
[5] Ashcroft v. ACLU, 542 U.S. 656 (2004), U.S. Supreme Court, June 29, 2004. https://supreme.justia.com/cases/federal/us/542/656/
[6] 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
[7] 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.
[8] 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/.
[9] 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.
[10] For example, a quick step-by-step walkthrough for how to enable parental controls on any commonly-owned mobile device: “Parental Controls,” Internet Matters, https://www.internetmatters.org/parental-controls/