Age assurance legislation proves contentious and confusing to advocates

Efforts by governments around the anglosphere to put age assurance barriers between children and age-restricted content are not sufficiently targeted and will have unintended consequences, privacy advocates warn.

Witnesses testifying at a Canadian parliamentary hearing told committee members that the Protecting Young Persons from Exposure to Pornography Act introduced by Independent Senator Julie Miville-Dechêne could end up restricting access to platforms that do not share pornography, including Netflix, CTV News reports.

The bill does not mandate a mechanism for age assurance, both governments elsewhere are turning to biometric age estimation or ID document checks.

Privacy Commissioner Philippe Dufresne and Canadian Heritage Deputy Minister Owen Ripley both say that bill S-210 is too broad in scope.

Privacy attorney David Fraser testified that “The technology simply doesn’t exist to permit age verification at scale,” despite the exact opposite conclusion being reached by both the UK’s ACCS and the U.S. National Institute of Standards and Technology. University of Ottawa Law Professor Michael Geist gave similar testimony. They also say the bill potentially threatens freedom of expression as well as adults’ access to lawful material.

The bill passed a second reading in Parliament in December, with the opposition Conservatives, NDP and Bloc Québécois supporting it and the governing Liberal party voting against it.

Fraser notes that businesses like Pornhub may simply withdraw from the market, as it did in Texas earlier this year.  That threat becomes increasingly hollow as American, British, European, Canadian and other jurisdictions advance online age assurance legislation.

Caveats abound

The hosts of CyberWire’s Caveat podcast discuss an Amicus brief submitted by the Electronic Frontier Foundation (EFF) in the Free Speech Coalition Incorporated v. Ken Paxton, the attorney general of Texas.

The EFF argues that the law violates First Amendment Constitutional protections of free speech.

Like some of Canadian parliament’s expert witnesses, hosts Dave Bittner and Ben Yelin seem a bit fuzzy on some of the details of the case. They state that the law requires users to upload a photo of their ID. But this is only one of three means of age verification, along with biometric facial age estimation and inference based on other information. This point was highlighted by the Fifth Circuit in upholding the legislation.

Bittner and Yelin discuss the use of on-device biometrics for age assurance, but contend that Texas “didn’t provide biometrics as a sufficient tool to access these websites.” If the capability is restricted to those who own specific devices, then such a measure would be unfairly restrictive, but the argument is irrelevant, since this is not an age assurance method on offer.

The EFF argues in its court submission that the purchase of age restricted goods is materially different from access to a store or platform that sells age restricted goods. Further, some content may be age-inappropriate but also protected, important information for people to be able to access.

The law would also require people to perform age assurance to watch Netflix if it makes an X-rated movie available, even if they are not watching that film, Caveat’s hosts say.

The Supreme Court is expected to decide soon if it will hear an appeal from the privacy groups.

Meanwhile in Ireland, anti-hate group Hope and Courage Collective says the country’s new Online Safety Code will not work as intended, due to the exclusion of recommendation algorithms on social media platforms from its scope, the Irish Examiner reports.

In contrast, Luciditi writes in a post on Ofcom’s new Children’s Safety Codes, which are the second of the regulator’s four consultation exercises for implementing the Online Safety Act, that social media platforms and other online service providers will need to be proactive to stay on the right side of the law.

“Ofcom’s proposals go much further than current industry practice and demand a step-change from tech firms in how UK children are protected online,” Luciditi’s Philip Young writes.

Article Topics

Canada  |  data privacy  |  face biometrics  |  Ireland  |  Luciditi  |  Ofcom  |  regulation  |  UK  |  United States