National Security, Age-Gating, First Amendment Areas to Watch, Experts Say

“One of the problems of the modern national security surveillance system is that so many private entities collect our data,” said Lee Tien, EFF legislative director. “They hoard it, they use for advertising, they use it for other things, and then the Feds get to suck that up. So the overall surveillance problem isn't just a government surveillance problem, but right now, we can't keep the government's hands off of it.”

But the mood of the public is more privacy-sensitive lately, he said, which could be promising for better data protection and privacy regulation. The expected shutdown of TikTok (see 2501100058) is an example of growing skepticism about its national security implications, said Tien.

“That's my sense of hope about this … maybe people are going to wake up both on the privacy side and on the national security side to realize that the government owes us better answers,” he said.

The Kids Online Safety Act (KOSA) is an area where First Amendment concerns and privacy concerns intersect, said Joe Mullin, senior policy analyst at EFF. “This is a straight-up censorship bill,” he said. Despite there being multiple iterations of the bill over time, the core of it is always “how websites will have a duty to get certain content that politicians think is harmful,” -- the politicians “redefine harms to minors” -- and then “take steps to make sure that content doesn't get seen.”

“What you're seeing is that politicians in both parties think they will have something to gain from getting in that mix and … thinking they will be the authorized referee of internet speech,” said Mullin. “It's a very misguided effort.”

KOSA and other similar online safety laws have led to the idea of age-gating or having age verification requirements, he said. “We've never had an ID check system on the internet,” Mullin said. "The reason the internet has been so successful and has changed everything about how we communicate is because it was designed as an open system with trust and open standards, and that still should affect how we think about it.”

Mullin said that age verification tactics online are an invasion of privacy. “Online ID checks are not, and mathematically cannot be, anything like the momentary in-person ID checks that we're used to in the physical world, where you're holding your ID and you can withdraw consent,” he said. “Online ID checks are going to be uploads of government-mandated ID cards, and there are going to be databases of who viewed what site,” which is a “privacy and security risk.”