Experts Weigh Supreme Court’s Paxton Decision on App Store Bills
The U.S. Supreme Court’s decision upholding Texas’ porn site age-verification law bodes well for dozens of similar state laws, but it might not apply meaningfully to app store age-verification laws, policy experts said during a livestream Tuesday.
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The Supreme Court in June upheld HB-1181, a Texas law requiring age verification for access to adult sites (see 2506270041). Nearly half the country has enacted similar legislation, according to the Age Verification Providers Association.
Another concept gaining traction is requiring age verification at the app store level and parental consent for children to download certain apps. Texas, Utah and Louisiana have app store age-verification laws, and U.S. Sen. Mike Lee, R-Utah, is pursuing a federal bill.
The Supreme Court’s decision in Free Speech Coalition v. Paxton likely means similar laws targeting pornography “are almost certainly going to be upheld by lower courts,” said Thomas Berry, a constitutional scholar at the Cato Institute, which hosted Tuesday’s livestream.
ACT | The App Association General Counsel Graham Dufault said he doesn’t expect Paxton will have a significant impact on forthcoming challenges to the app store laws because those measures aren’t narrowly tailored to obscene content.
Ariel Fox Johnson, Common Sense Media senior advisor for data privacy, agreed Paxton leaves a lot of unanswered questions about how it might apply outside the context of adult content. But she welcomed the decision, saying it will help companies determine what’s feasible on age assurance. Industry now has a business incentive to find technically feasible approaches that don't overly burden users but also protect privacy, she added.
Johnson said there’s no “silver-bullet” legislative solution for verifying age across all apps, app stores and websites. Mobile sites, preloaded apps, shared devices and an entire range of online options for content means there needs to be a “multi-faceted and flexible” approach that gives parents choice, she said.
Dufault said app store bills run the risk of subjecting general audience companies to compliance requirements under the Children’s Online Privacy Protection Act. The laws in Texas, Utah and Louisiana require app stores to send a digital signal indicating age and mandate that all app developers receive the signal and have actual knowledge of users younger than 13. That immediately subjects those companies to COPPA compliance, even if their content isn’t child-targeted, he said. Dufault argued this goes against Congress’ intent in passing COPPA, which was to give parents more control over kids’ online activities.
Johnson said that if the goal is to protect privacy, companies don’t need to verify age. They can just protect everyone’s privacy by turning off ad-targeting, tracking and profiling by default, she said: “You don’t have to have this question of figuring out who is a child and then possibly chilling adults’ access to something.” Privacy and safety aren’t at odds, she said: Collecting as much data as possible and retaining it indefinitely is at odds with privacy and safety.
Dufault said that if parents want better tools to work across the internet, the last solution should be to allow government and compliance experts to design them. Parents should control the process, with developers constructing tools for them, he said.