Respected legal authority frames age assurance legislation as segregation, suppression

Language plays a fundamental role in how concepts and technologies are introduced into and evolve alongside society. The debate over laws requiring digital age checks for online content deemed unsuitable for children has generated its own lexicon. Early on, “age verification” was used as a blanket term for the provision of this service. It has since broadened into “age assurance,” which unifies the subcategories of age verification (wherein a date of birth is required at some point in the process, to verify age) and age estimation (wherein an algorithm analyzes biometrics or other data to guess at someone’s age, typically within a given range).

The evolution of the laws and the language is ongoing, both among those who support and provide the technology, to those who oppose it. A new paper by Eric Goldman, published through Stanford Law School, unsheathes a new term with which to flay its legitimacy, framing what is formally called online safety legislation as “segregate-and-suppress laws.”

“In an effort to protect children online, regulators around the country and the world are enacting laws that compel Internet publishers to age-authenticate every reader (minors and adults alike) and then require publishers to restrict minors’ access to online content or resources,” says the abstract. “Legally mandating differential treatment between minors and adults superficially sounds like common sense, but implementing this principle online leads to surprising and counterproductive outcomes.”

Goldman contends that “segregate-and-suppress laws seek to protect minors online by harming minors online.”

No consistency in age assurance laws across jurisdictions

The author has the credentials to make the argument. Goldman is a professor at Santa Clara University School of Law, and associate dean for research, co-director of the High Tech Law Institute and supervisor of the Privacy Law Certificate. He clearly knows international age assurance legislation. Part of the problem, he says, is how little of it aligns.

“There is no consistency in how the laws define minors, how the entities are supposed to determine who is a minor, what entities the laws regulate, and how the laws require those entities to restrict minors.”

Yet his theory rests heavily on the hastily defined language holding it up. “Segregation” – which comes with its own immense allusionary weight – is his term for the process of distinguishing minors from adults. The blocking of those determined to be minors is “suppression,” a term that often refers to violent applications of force. Defining the terms in this fashion has already loaded the argument.

Further definition demonstrates a flawed understanding of the terms being interrogated. Using “age authentication” as a blanket term, Goldman defines the language as follows:

“‘Age assurance’ means that a reader is confirmed as an adult and not a minor, without any further precision about the person’s age. ‘Age estimation’ means that the reader’s age is estimated within a margin of error, e.g., within a range of plus or minus two years. The term ‘age assessment’ is sometimes used. ‘Age verification’ means that a reader’s exact age is determined.”

The flaw here is in defining age verification as a scenario in which a person’s exact age is determined. While an initial verification process requires age, tokenized and double-blind methods enable a third party to verify that a user is over a certain age threshold with a simple yes or no. No exact date of birth is disclosed to the relying party.

(Goldman later recognizes that “authentication services could also be offered by offline enterprises that conduct in-person document review to authenticate age and issue some token or certification that readers can present to publishers about their age,” but his discussion of tokenization appears limited to the physical world.)

Having thusly established his lexicon, he proceeds in stating that he “doesn’t further distinguish between these age authentication types” because they all create the same harms.

Prioritizing ‘innovation,’ author argues compliance costs aren’t fair

The piece ultimately wants to argue that “online age authentication exposes minors (and adults) to heightened privacy and security risks.” Yet it also pursues its argument on the assumption that certain legal machinery – the constructive knowledge standard, for one – will lead to overreaction and over-restriction from platforms who fear the regulators’ wrath. This, he says, will create “a technical barrier to reader access that will dissuade readers from navigating around the Internet. This reduced traffic will affect publishers’ revenues and force them to bear higher authentication costs.”

“Collectively, these economic forces will drive some publishers offline, making less content and fewer services available to readers (minors and adults alike), and the remaining publishers will erect more paywalls, exacerbating digital divides. Most insidiously, online age authentication builds an infrastructure that facilitates government surveillance of and control over the public.”

Some very high-level questions loom over this line of thinking. First, given that enforcement of age assurance regulations has thus far focused on pornographic websites and sites that promote self-harm, is it actually a net negative to “make less content and fewer services available to readers”? Restricting online porn is not restricting access to porn; it simply recognizes that porn is a product, not a right, and limits it to those who wish to pay for it. (Conversely, there is no real argument to be made that the livestream of this past weekend’s Black Sabbath tribute concert should have been free because kids deserve access to metal as a part of British heritage.)

Second, is the bounce rate of startup websites actually a higher societal priority than concerns that free access to certain kinds of online content has been proven to influence kids’ attitudes about sexuality? This is the “stifling innovation” argument, which in this case appears not to be familiar with figures like influencer Andrew Tate, who has defined life as “a war for the female you want.”

Third, is the assumption that regulators will wield their axe like berserking Vikings informed by the American tendency to see things through the lens of endless litigation? Europe, the UK and even Canada have different levels of social trust and standards for free speech. It seems unlikely, for example, that French regulators would ever take the opportunity to try and shut down a political publication like Charlie Hebdo.

Kids could fight if some have Instagram, others don’t

Goldman brings out Maslow’s hierarchy of needs to give his argument some color, positing some kind of inter-teen conflict should age assurance snatch away access to Instagram for those who really need it. Some kids say social media makes them feel better, so “regulatory intervention simply prioritizes some minor subpopulations over others, which is the opposite of ‘protecting all children.’”

He also suggests age assurance will have a kind of social stigmatizing effect. “By enacting age authentication mandates, the government sends a clear message to Internet readers: they must ‘pay’ for the privilege of enjoying online content and services by sharing their highly sensitive personal information with online strangers. What lessons might people – especially minors who are developing their intellectual identities – internalize from having this message repeated to them many times a day and stamped with the government’s imprimatur?”

The argument seems to imply that restricting sites that have been shown to be detrimental to young people’s mental health, self esteem and social skills will harm youth, because they’ll feel bad being asked how old they are all the time.

In the end, the paper feels as though it could be a job application to work for NetChoice, the deep-pocketed Silicon Valley industry lobby formed to aggressively litigate age assurance legislation for social media. Unsurprisingly, Goldman authored an amicus brief in 2023 for Moody v. NetChoice and NetChoice v. Paxton, supporting the industry group.

Two overarching points shine out from the verbiage. First, Goldman’s legal thinking is rooted in the deeply American idea that “freedom” is of paramount importance in every situation, however it has been legally defined. Conceptually, this encompasses market freedom as much as freedom of speech. The belief that PornHub should remain free and unencumbered by costs or so that kids have the right to watch choking porn is certainly born of a certain perspective vis-a-vis free enterprise.

Second, Goldman makes the assertion that “as age authentication becomes widely deployed across the Internet, governments will inevitably co-opt the process to increase their control over their constituents.” This mealy concern is offered at a time in the U.S. when a mass police force has been given daily quotas for grabbing immigrants to deport. The surveillance state in the U.S. has arrived; if it wants to find out about someone, it likely can. Stats on visits to porn sites are unlikely to be the straw that breaks the camel’s back, when entities like Palantir are securing government contracts.

Parental oversight, digital literacy, more research pitched as solutions

Goldman does propose solutions, but they again feel drawn from NetChoice’s quiver.  “Policymakers should ensure that minors develop the digital literacy and citizenship skills they need for their future personal and professional growth,” he says. “Train parents to become better teachers.” Find more research, “about how the Internet impacts minors (both positively and negatively).”

He finishes with a nice bit of irony. “It’s tempting to assume that proponents of segregate-and-suppress laws genuinely believe that the laws are the best way to protect children,” he says. “The problem with this assumption is that regulators repeatedly demonstrate that they don’t understand, or care about, the many downsides of segregate-and-suppress laws.” Instead, he says, “regulators are embracing simplistic one-note solutions to complex, multifaceted social problems.”

A key piece of Goldman’s argument is to shrug off the notion that the Internet might be bad for kids – repeatedly demonstrating that he doesn’t understand, or care about, the many downsides of mainlining free porn, or online bullying, or a brutal decline in actual literacy among youth. The legal machinations he pursues here are insular, and, frankly, seem unlikely to convince any policymaker who is familiar with the age assurance industry.

Article Topics

age verification  |  biometric age estimation  |  children  |  regulation  |  social media