SCOTUS' Paxton Age-Verification Ruling Is Just the Beginning, Privacy Pros Say
The U.S. Supreme Court decision that upheld Texas' law requiring age verification to access adult websites (see 2506270041) will have a ripple effect, prompting the creation of similar laws in states along with constitutional questions about how and where age verification can happen, said privacy experts in recent blog posts. Similarly, advocacy groups that disagreed with the high court's decision argued it may embolden other states to expand the definition of off-limits material, further challenging the First Amendment and ultimately letting politicians make content decisions (see 2507070037).
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“The ruling is poised to ripple outward,” said Morrison Foerster (MoFo) lawyers Kevin Kallet and Aaron Rubin in a July 10 blog post. “With the Court’s decision, those legislative efforts [to enact other age-verification laws] may find firmer ground,” they said.
Richart Ruddie, founder of data privacy and compliance tool suite Captain Compliance, agreed in a July 9 contributing post for the IAPP. The June 27 decision "doesn't exist in a vacuum,” he wrote. “At least 18 states have already enacted similar age verification laws; more are likely to follow now that the Supreme Court has given its approval." The decision could extend beyond adult websites to other platforms, such as social media, "where lawmakers are increasingly pushing for age-based restrictions.”
Kallet and Rubin noted that SCOTUS left questions for platforms, regulators and courts. For example, "How narrowly can states define ‘harmful to minors’? Who qualifies as a valid age verifier? And how will courts assess the burden of compliance when laws vary state by state?”
The MoFo lawyers noted that the ambiguity and lack of detailed definitions in the Texas statute is what the court embraced “as part of the law’s constitutionality.” However, they again noted the decision leaves a compliance gray zone. “Platforms hosting user-generated content or dynamically served media may face real technical burdens in attempting to monitor and quantify compliance across large and constantly shifting libraries of material to determine whether the one-third threshold has been triggered,” which was left ambiguous.
A July 8 blog post from Sidley touched on the same threshold. “The Supreme Court’s decision implicates more than just pornography; the holding engulfs any website or social media platform where a third or more of the content could be viewed by an ‘average’ person as ‘sexual’ and ‘obscene’ to minors,” the law firm wrote.
For Kallet and Rubin, “The opinion preserves room for future challenges, particularly around implementation burdens, data privacy, and whether other approaches could achieve the same ends with fewer constitutional costs.” The fight over online speech is "likely to shift from whether the state can regulate to how far it can go, and Paxton may become a doctrinal anchor for courts assessing those efforts.”
The Sidley blog said the ruling “signals a significant shift in digital content regulation” that platforms and providers will need to carefully navigate. “In a world where data leaks are rampant, privacy critics have invoked arguments that mandatory age verification requires users to upload sensitive personal information to gain access, escalating the risk of data breaches and potential misuse.”
Ruddie said the situation could "get scary very fast,” since adult websites handle particularly sensitive data. “For privacy professionals, the ruling isn't just about adult websites and requesting identification to grant visitors' access,” he said. “It's a wake-up call about the delicate balance between regulatory compliance and safeguarding user data in an era where breaches spread like wildfire and the dark web can have not only your ID but the explicit websites you visited.”
“The ruling underscores the need for robust data minimization strategies,” Ruddie said. “Websites subject to age verification laws must only collect the data necessary to comply and retain it for the shortest time possible.”