SCOTUS Will Hear Age-Verification Case This Week

Case 23-50627, or Free Speech Coalition v. Paxton, deals with Texas HB-1181 and its requirement that commercial pornographic websites must verify visitors' ages. The Free Speech Coalition, a porn industry trade association, sued Texas Attorney General Ken Paxton (R) in 2023 for violating the First Amendment (see 2409170012). SCOTUS is set to hear oral arguments Wednesday (see 2410310015).

Last week, the ACLU, which represents Free Speech Coalition, held a webinar previewing the case. The law infringes on people’s First Amendment rights as well as poses privacy risks, free speech advocates argued during the webinar. “Forcing adults to share personal and identifying information before they can access protected expression will obviously make people think twice before accessing websites and material that they have every right to access,” said Vera Eidelman, ACLU staff attorney.

But many supporting the law, including Iain Corby, executive director of the Age Verification Providers Association, disagree that verifying age infringes free speech or privacy rights. “What we are hoping to explain is that actually proving your age online is not a burden,” Corby said in an interview. “It's very simple, it's cheap, it’s privacy preserving. It can be done once and used across multiple websites.”

The association, which represents suppliers of age verification and age estimation technology, submitted an amicus brief supporting Paxton in the case.

Mike Stabile, the Free Speech Coalition's director-public policy, doesn't believe age verification methods are quite that simple. “A lot of people talk about this law in terms of flashing your ID at a liquor store or something like that, where nothing is reported, where it is seamless," he said during the webinar. In the liquor store example, "It doesn't take, as it does with these [age-verification methods], several minutes to scan an ID, upload it to some organization that you've never heard of, do a face scan, all for stuff that is … highly sensitive.” Also, “people have concerns about identity theft. They have concerns about biometrics being reported and things being monitored and tracked.”

Corby, in the interview, mentioned the liquor store analogy. “All we are trying to do as an industry is to make the Internet age-aware so that we can apply the same norms of society that we've had for 100 years in the real world to the online world.”

Age verification can happen in multiple ways, but it revolves around proving your date of birth is true and belongs to you, Corby said. One way to do this is scanning a copy of your picture ID, like a passport, with your phone and then taking a current selfie. “An app on your phone will compare your selfie to that passport photo, and then it will send to the website you're trying to access an encrypted signal just to say yes or no as to whether this person is over 18,” he said. “This image never [leaves your] device, it’s all done on your phone.”

Another verification method uses facial age estimation to determine from a selfie whether the person is a minor or not, Corby said, pointing to several other methods, including logging into a bank and having the bank confirm the person's age.

Stabile, though, said research shows people unwilling to do these things. “When an adult site tries to do age verification, most people coming to that site refuse to do a face scan, biometrics, ID, upload, whatever it is.”

“It's really not hard to imagine why,” said Eidelman. “We're talking about content that, if tied to someone's identity, could reveal their sexual preferences, could reveal questions that they have, could reveal things that might cause them to lose their job or create serious problems in a personal relationship.”

Instead, said Lee Rowland, National Coalition Against Censorship executive director, laws like these force people to find loopholes, like using VPNs. “People are still going to try and access this content, but they're going to do it in ways that involve workarounds, that may involve being in less safe places on the web in terms of their data and traffic, all to avoid being unconstitutionally required to self-identify,” she said during the ACLU webinar.

Corby, however, said there's no risk of identity theft. “We do not create databases of lots of personal IDs,” he said. “We like it when the age-verification laws -- and the one in Texas does this -- make it illegal to retain the data… almost every age-verification law is including that data protection provision.”

Corby said his organization audits and certifies verification methods against international standards. “What I really want to do is to break the link between age verification and privacy concerns,” said Corby. “If you can put a man on the moon, you can prove your age without distributing your identity … The technology to do this has been around for decades. It's pretty straightforward, but I think people like to set it up as a problem in order to avoid age verification.”