The Law & Economics of Online Age Verification and Parental Consent: Device-Filtering Edition
As patient observers continue to await the U.S. Supreme Court’s decision in Free Speech Coalition v. Paxton, which many hope will clarify the constitutionality of online age-verification regulations, the debate over how to best protect children online, given the strictures of the First Amendment, continues to evolve.
While several states have attempted to impose age-verification requirements on social-media and online pornography sites and apps, courts have (with only rare exceptions) largely rebuffed these attempts under applicable Supreme Court precedent. Some states and federal legislators have also proposed app-store verification, which—while somewhat different—presents the same fundamental issues.
The more recent move has been toward device-level age verification and parental consent, with filtering technology automatically enabled by default. These so-called device-filtering bills are popping up in states around the nation and have received some support at the national level. Indeed, one such bill, Idaho’s SB 1158, is up for consideration this morning before that state’s Senate State Affairs Committee.
In this post, I will consider whether a device-level approach is less restrictive than imposing age verification and parental consent at the content or app-store level. To skip to the conclusion: while laws aimed at limiting access to online pornography stand a better chance than those that would limit access to all online speech, device-filtering mandates do not appear to be the lowest-cost (or least-restrictive) way to deal with the problems of child protection online, given the tools readily available in the marketplace.