NetChoice keeps suing, states keep legislating in age check tug-of-war

Newton’s third law of motion dictates that all forces occur in pairs, and that for every force in nature there is an equal and opposite reaction. So it goes in U.S. age assurance legislation, where every new bill seemingly triggers new litigation from Big Tech.

NetChoice, which manages legal pushback against age assurance on behalf of Meta, X, Snap, Reddit, YouTube, Pinterest, OpenAI and other companies, is in court fighting Virginia’s proposed age check law, SB 854. A release from the organization says it is asking the Eastern District of Virginia to put the law on hold while its case “moves through the legal system.”

“Virginia is trying to ration access to lawful speech,” says Paul Taske, co-director of the NetChoice Litigation Center. “Fortunately, the First Amendment flatly forbids this blatant censorship. The result is no different just because the speech in question happens online. Whether it’s reading books, watching documentaries on television, or engaging on social media, the government must leave the decisions about what to read, and for how long, to the individuals and their parents.

“Virginia claims that it wants to empower parents. SB 854 fails in that goal. Rather than empower parents, SB 854 sets the government in control and usurps the parents’ right to make decisions for their families in the first instance.”

SB 854 would impose a one-hour limit on major social media platforms for users under 16, unless parents consent otherwise.

With one-hour time limit, how will teens watch Ken Burns documentaries?

NetChoice’s attacks on this particular file are especially thin. The group asserts that “by mandating specific time limits on social media, Virginia’s government dictates how long its citizens can engage with documentaries or political discourse – a heavy-handed intrusion no different from rationing your time spent reading books or speaking in person.”

Meta and its lawyers would have the courts believe that teenagers are on social media, carefully absorbing long-form documentaries or engaging in rational political debate with their peers in the virtual quadrangle. YouTube may have a case, given its extensive uses. Otherwise, this is a very long reach.

But if Facebook, Instagram, X, Snap and the rest were simply improving teens’ lives with knowledge, no one would be bothering with age assurance laws. The whole point is that data has shown how extended time on these platforms causes specific harms to kids. A 14-year-old girl is far more likely to develop an eating disorder from scrolling endless, idealized images on social media than they are from spending three hours a day reading.

The assertion that “imposing government-mandated time limits on social media use is no different than restricting reading books or watching documentaries” is absurd, and attempts to sweep away the reason there is legislation at all. There is no data showing that documentaries or books are bad for kids’ brains.

In a 1973 market research paper entitled “Some Thoughts About New Brands of Cigarettes For the Youth Market,” the R.J. Reynolds tobacco company wrote, “at the outset it would be said that we are presently, and I believe unfairly, constrained from directly promoting cigarettes to the youth market.”

“The fragile, developing self-image of the young person needs all the support and enhancement it can get. Smoking may appear to enhance that self-image in a variety of ways.”

Washington state pursuing age assurance law for porn

Action, reaction: in Washington, there is bipartisan support among lawmakers for House Bill 2112, which would impose age verification requirements on websites that host sexual content harmful to minors.

The bill – one of the first pieces of age assurance legislation to be introduced in a Democratic state – is modeled on Texas’ landmark age check law for pornography. The act, “relating to establishing an age minimum to access certain adult content online,” gets extremely detailed on what constitutes said content, with reference to specific body parts and sexual acts.

The Seattle Times quotes Rep. Mari Leavitt, D-University Place, who sponsored the bill.

“It’s about protecting our children online where the dangers are increasingly inherent,” she says, pointing to data from the American College of Pediatricians showing that early exposure to pornography can cause anxiety, depression and “increased sexual promiscuity.”

The bill, however, is not popular with the public, with testimony highlighting concerns about data breaches and “vague language in the legislation.” Moreover, the American Civil Liberties Union (ACLU) has objected to the law on the grounds that “the bill’s subjective definition of ‘sexual material harmful to minors’ based on community standards, has historically treated LGBTQ+ content as inherently sexual, even when educational – limiting critical resources for LGBTQ+ youth.”

Malleability of ‘community standards’ a concern

Here the specific language becomes critically important. The bill aims to restrict content that “the average person applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to or pander to the prurient interest.” So while being picky about pubic hair is one thing, there is still plenty of room for interpretation in terms like “contemporary community standards.”

That said, some pushback to the bill is overzealous and factually careless. Robert Zinchak, a lobbyist with the group StopKOCSA.com, classifies age assurance providers as “data brokers” that will “profit immensely” from the law.

“If you give data to a data broker, they are going to sell it,” Zinchak says. “They are going to breach it. It does not matter what you put in this legislation. That is what is going to happen.”

A response from Iain Corby, executive director of the Age Verification Providers Association (AVPA), points out that minimal data retention is the goal of most providers.

“The essence of age verification is proving your age without disclosing your identity,” he says. “And frankly, that’s not that hard to do in this world of modern technology.”

Washington’s proposed legislation includes civil penalties of up to 10,000 dollars per day for noncompliance, and allows fines up to 10,000 dollars per instance for unlawful data retention.

Article Topics

age verification  |  biometric age estimation  |  biometrics  |  children  |  legislation  |  Netchoice  |  social media  |  United States  |  Virginia  |  Washington