The Law & Economics of Online Age Verification and Parental Consent: App Store Edition
Roughly this time last year, I was writing an International Center for Law & Economics (ICLE) issue brief that considered online age-verification and parental-consent laws from a law & economics perspective. The resulting paper, “A Coasean Analysis of Online Age-Verification and Parental-Consent Regimes,” found that the major U.S. Supreme Court cases on age verification and parental consent implicitly followed a Coasean least-cost-avoider analysis, especially with respect to the First Amendment’s “least-restrictive means” test. I noted there that federal district courts appeared to be applying similar analysis in reviewing state-level online age-verification and parental-consent laws, and finding them to be likely unconstitutional.
Since then, federal courts continue to find state laws that impose age-verification and parental-consent requirements on social-media companies likely violate the First Amendment. Courts (see here, here, and here) have consistently applied some type of heighted First Amendment scrutiny, ultimately concluding that the available technological and practical means of avoiding online harms are less burdensome on speech than the laws in question.
In light of these rulings, then, it is peculiar that federal lawmakers continue to consider laws that would impose age-verification and parental-consent mandates. One such recent proposal from Rep. John James (R-Mich.) would apply both types of mandates to digital app stores. The law would make app stores liable if they fail to verify users’ ages or get verifiable consent from minors’ parents before allowing them to use the app store, download an app, or make any purchases within an app. James argued at a recent markup hearing that his proposal—offered as an amendment to H.R. 7890, the Children and Teens’ Online Privacy Protection Act—would be constitutional, even in light of recent rulings suggesting such mandates at the application layer are not. Despite courts rejecting this exact analogy, he compares the obligation to a convenience store asking for identification before kids can buy alcohol or cigarettes and argues that app stores should similarly be required to “age gate.”
Below, I will consider whether app stores are lower-cost avoiders of online harms to minors when compared either to social-media companies or to minors and their parents. I will then offer a brief analysis of the First Amendment questions at-play.