Think Tank: Age Verification Laws Have More Risks Than Benefits

WASHINGTON—As state legislatures across the United States continue to adopt online age verification legislation, critics continue to voice their concern that these laws are more risky than helpful.  A recent report by the Open Technology Institute (OTI) at New America, a left-leaning think tank, suggests that current age verification legislation in the United States—regardless of whether it specifically targets adult entertainment websites, social media platforms, or both—falls short in mitigating specific risks. Risks include privacy concerns, harm to LGBTQ+ communities, and the broader concern of First Amendment violations.  The report, titled “Age Verification: The Complicated Effort to Protect Youth Online,” argues that lawmakers have not, for the most part, considered the implications of requiring individuals, especially parents of minors, to verify their identity and age through existing practices.  Erika Solis, the Google Public Policy Fellow at OTI; Sarah Forland, a senior research associate; and Nat Meysenburg, an OTI technologist, authored the report.  “All children—and adults—should be able to access online spaces and interactions safely, securely, and in a rights-respecting manner,” reads a portion of the report.  OTI recommends several solutions and concepts for lawmakers and regulators to consider. In the report's final section, the authors specifically warn against using age verification and age-gating legislation to restrict access to certain types of online content.  The report states that “any allowances to restrict speech in the name of protecting children can have far-reaching consequences for freedom of expression and access to information. … Allowing the politicization of content to drive age verification requirements can set a dangerous precedent for years to come, leaving users and companies responding to changing considerations of what is age-appropriate or not.”  This is a top concern for groups like the Free Speech Coalition (FSC), the trade organization for the adult entertainment industry. OTI argues that specifically targeting forms of speech that are politicized, like adult content, can lead to a constitutional crisis in the courts and in state legislatures across the country. FSC has appealed a lawsuit it filed against an age verification law in Texas that specifically targets legal pornography.  The appeal was filed to the U.S. Supreme Court on behalf of FSC and the parent companies of the largest adult entertainment websites in the world by counsel from the American Civil Liberties Union and high-power law firm Quinn Emanuel Urquhart & Sullivan, LLP. In the petition for writ of certiorari, counsel for the adult industry plaintiffs argue that age verification laws go against long-standing Supreme Court precedent that the government segregating the age of internet users to content online violates users’ First Amendment rights.  FSC’s petition is to overturn a split decision handed down by the U.S. Fifth Circuit Court of Appeals, which found the Texas age verification law constitutional because it highlighted the state’s right to protect minors from viewing age-restricted materials. However, the definition of what is “harmful to minors” is overly broad. LGBTQ+ rights activists have argued that age verification laws could be used to restrict and censor content for queer youth who are seeking information on gender identity.  Technology companies argue that age verification laws add unnecessary regulations when it comes to trust and safety policies instituted and enforced internally.  “While more efforts are needed to ensure children can safely and securely access online spaces, age verification mandates may actually pose more risks than benefits—resulting in unintended consequences for the constitutional rights, privacy, and security of all users,” the report's authors added.  AVN contacted Iain Corby, executive director of the Age Verification Providers Association (AVPA), for a reaction to OTI’s report and its recommendations.  “We agree with this report’s key conclusion that privacy-respecting age verification is possible via the use of existing and well-understood cryptographic principles, e.g., privacy-enhancing technologies (PETs),” Corby told AVN in an email. He refers to how OTI deals with the need to continue to invest in and innovate in the PETs that most age verification providers say they employ in developing age assurance measures like artificial intelligence-driven age estimation scans.  Alison Boden, executive director of the Free Speech Coalition, applauded the OTI report for confirming what she says is the FSC’s whole grounds for fighting these laws. Boden told AVN, “This report thoughtfully examines current age verification technologies and policies and explains the practical risks they create for children and adults alike.” She then said lawmakers and all stakeholders should take the recommendations seriously.  FSC and AVPA both tout a want to respect personal rights while protecting minors from age restricted materials online. However, the two groups continue to side on different ends of the debate. A recent case of this was seen at the California state legislature when AVPA’s Corby testified in favor of an age verification proposal backed by far-right religious groups who want to see porn restricted and censored in some format. FSC’s Boden testified against the bill echoing her group’s concerns of censorship and privacy risks.