Age verification for porn has unintended Constitutional costs: Google Trends study

New research based on Google Trends data questions the effectiveness of state age assurance laws for adult content sites – but falls into some fairly well established traps in doing so.

The paper, “Unintended Consequences of Age Verification Laws: Evidence from Search Behavior,” is written by George S. Ford, a co-founder of the Phoenix Center for Advanced Legal & Economic Public Policy Studies – a nonpartisan D.C. thinktank. Ford believes his study of internet search trends for “VPN” and “free porn” proves that “the availability of VPNs and alternative sites that ignore the law suggests that the effectiveness of state-level age verification laws is questionable.”

Questionable is the name of the game here, as the author digs into the VPN argument: “If anything, because minors are especially adept at using VPNs, age verification laws may do more to impede the First Amendment rights of adults than to curb the access of minors to adult content.” There is then an iffy bit of constitutional calculus, in which he attempts to assign “constitutional weight” to various formulaic expressions based on assumptions about the objective value of terms like “harm.” He then drags this framework over to VPN use, stating that “there is little reason to suspect that minors are less adept than adults at using VPNs to bypass age verification laws.”

Breaking news: teenagers are tech-savvy

Are minors especially adept at using VPNs? Or do we just suspect this – or, moreso, have no reason to not suspect it? Regardless, Ford says, the “framework suggests that the constitutional question turns critically on empirical measurements of circumvention rates and deterrent effects.” If we can measure how these age assurance laws are working and aren’t, we’ll know when they work and when they don’t.

There is a lot of fancy language in Ford’s paper, but ultimately, it is pseudoscience posing as robust thinking on policy. It fundamentally misunderstands certain key aspects of online safety laws and their attendant age verification requirements. Take this nugget: “Studies indicate that adolescents aged 13-18 are highly tech-savvy and already routinely use VPNs to bypass school filters and parental controls. This demographic pattern suggests a perverse outcome: age verification laws may be least effective at blocking motivated teenagers who are the primary policy concern.”

No one has agreed that teenagers aged 13-18 are the primary policy concern driving these laws. A frequently stated primary objective is to stop young kids from accidentally stumbling on extreme or explicit content; although one has to put the threshold of adulthood somewhere, few would argue that a 17-year-old boy seeing some sex online is as likely to have harmful consequences as if the viewer is 7.

Besides which, assuming direct correlation between age verification requirements, searches for the term “VPN” and actual cases of minors using VPNs to circumvent age verification is, at best, a stretch; backing that up by pointing to data that says “teens know how to use technology” should elicit nothing more than a shrug. This constitutional cost-effect exercise is built on phantom currencies.

List of countries with age assurance laws shows momentum

Age assurance laws are easy to argue against, especially in the context of a country that has made a golden calf of its First Amendment. Mashable, which has a list of countries that have enacted age verification legislation, says “experts have told Mashable for years that age verification doesn’t work for that intended purpose. This is because website companies based in other countries may not comply, or citizens may attempt to circumvent these laws using VPNs (or, in the case of the UK’s Online Safety Act, by using images of video game characters).”

But the word “may” is doing incredible lifting in this statement, and the notion that age assurance measures must post a perfect record of success within months of implementation is highly convenient for critics. The Age Verification Providers Association (AVPA) has attempted to dismiss what it calls the VPN fallacy by noting that people breaking a law doesn’t invalidate it. Consider speed limits: most people break them most of the time. Few would say they’re useless.

NetChoice continues chewing at California social media law

Nonetheless, there will be continued objection to age assurance as long as adult content sites and social media barons can afford to pay for powerful lobbyists. NetChoice, the litigation machine for Silicon Valley’s biggest companies, is suing Jason Miyares, the attorney general of Virginia, over its law SB 854.

“SB 854 requires ‘social media platforms’ to verify every user’s age and bans anyone under 16 from accessing social media sites for more than an hour a day without parental consent,” says its complaint. “By restricting the ability of minors (and adults, who must now prove their age) to access these websites, Virginia has ‘with one broad stroke’ restricted access to valuable sources for speaking and listening, learning about current events, and otherwise exploring the vast realms of human thought and knowledge.”

We might also wonder what varieties of relaxation, social bonding and smooth, rich flavor kids are missing out on because they cannot buy cigarettes. Or – as the social media giants are asking in California – what we take from kids when we ban personalized feeds based on algorithms that harvest their data.

Courthouse News Service reports that TikTok, Meta Platforms, Google and YouTube are taking SB 976, the Protecting Our Kids from Social Media Addiction Act, to court, alleging that by blocking minors from accessing personalized feeds without parental consent, it violates the First Amendment.

Restricting personalized feeds “regulates protected expression and imposes unconstitutional burdens on First Amendment-protected actions,” says TikTok’s suit. “The state can no more dictate how platforms make such editorial decisions than it can tell a newspaper which articles to present or how to present them. California’s Protecting Our Kids from Social Media Addiction Act does exactly that.”

“Surely, the state could not require museums or bookstores to eliminate their category classifications and place their works of art or books in random order without confronting the First Amendment – even if, in theory, the works remain available to their patrons,” says Meta’s filing.

Social media’s billionaire entrepreneurs have convinced themselves they have created something as valuable to public life as bookstores, museums and newspapers. It is, then, no coincidence that these are among things Silicon Valley’s great innovations have eroded, degraded and minimized.

Article Topics

age verification  |  biometric age estimation  |  children  |  legislation  |  Netchoice  |  regulation  |  VPN (virtual private network)