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Texas’ online age verification law upheld on appeal

Texas’ online age verification law upheld on appeal

Imposing age verification for access to pornography does not violate the First Amendment, according to the U.S. Court of Appeals for the Fifth Circuit.

The appellate court decision partially overturns an injunction placed on the bill by a district court at the end of last August.  The Fifth Circuit had granted a stay on the injunction in November, allowing the state to enforce the law pending the latest decision.

The court upheld an injunction against requiring health warnings to be displayed on all pornographic websites and advertisements.

The court found that the appropriate standard for a review of the law is rational-basis, rather than the strict scrutiny the lower court had applied. Applying rational-basis, the court found the age verification requirement can rationally be considered part of the legitimate interest the government has in restricting access to pornography by minors.

The court also found that biometric age estimation based on facial appearance, along with inspection of government ID and “some other available information used to infer the user’s age” are allowable under HB 1181, and at least one of them carries no greater privacy risk than in-person age verification. Further, the fines for retention of personally identifying information could result in even higher fines for privacy failures than age-check failures, incentivizing businesses to protect the privacy of their users.

Texas Attorney general Ken Paxton defended the law, and has also filed suit against a prominent pornographer in February.

Major implications

Yoti Co-founder and CEO Robin Tombs points out in a LinkedIn post that the court found the age verification requirement does not involve a “categorically different” burden on adults than the law already contains.

The ramifications, he says, “are likely to be very big.”

Massive fines will accrue to non-compliant sites from Texas, which is one of the most populous states in the U.S., at nearly 30 million people.

In addition to the alternative standard for considering appropriateness, the appeals court diverged from the district court in its assessment of the technology available, saying: “the Court’s decision was fundamentally bound up in the rudimentary ‘existing’ technology of twenty-seven years ago, but technology has dramatically developed.”

Age estimation based on face biometrics did not exist as a commercial product 27 years ago, but Yoti’s accuracy measurements last year showed a mean absolute error for estimations of people from 13 to 17 years old of 1.4 years.

The Age Verification Providers Association (AVPA) revealed on LinkedIn that it provided an expert report to court. The AVPA says the decision “squares the circle created by previous Supreme Court precedents.”

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