Quick Explainer: Florida’s Latest Age-Verification Mandate Isn’t the Answer to Online Safety
Many states continue to search for ways to place age restrictions intended to help prevent children and teens from accessing harmful content online. By far, the most common proposal this year is to mandate that mobile device app stores must conduct age estimation or verification for all users. This is usually accompanied by the requirement that app stores receive consent from a verified parent or guardian for anyone under a certain age to download an app. Variations on this proposal have been introduced in a dozen states to date.
Florida is the latest to introduce such legislation, via HB 931 and SB 1438 (“Online Access to Materials Harmful to Minors”). As we have written previously, these app store-level age restrictions are riddled with many of the same practical and constitutional problems inherent in any attempt to broadly restrict access to online speech and content. The state’s last attempt to mandate age verification for access to social media platforms is under litigation and likely to be enjoined and struck down in court. If passed, these new bills would likely follow suit.
They Will Likely Require Over-collection of Sensitive Personal Data
HB 931 and SB 1438 both saddle device and operating system manufacturers with an overly vague definition of what constitutes a “reasonably and technically feasible” means of determining a user’s age. Combined with the possibility of being held liable for mistakes in age estimation, this would likely lead to companies collecting more data from all users than is already the case. App stores, in particular, would have to obtain “verifiable parental consent” for a minor to download apps, which is particularly difficult to do without collecting sensitive documentation on the parents. Any new trove of personal data creates a tempting target for hackers.
They Pose an Unconstitutionally Broad Restriction on Access to Speech and Content
The app store restrictions would burden all users’ access to apps because the age-verification step must be performed on every new device. Moreover, for users tagged as minors, the mandate would effectively require parental consent to download any app, not just those rated as potentially sensitive. Previous attempts to age-gate access to entire platforms—as opposed to targeting particular services that primarily host mature content—have repeatedly been struck down or enjoined by courts, most recently in Mississippi and Utah.
They Impose Government Mandates When Private Solutions Already Exist
Increasingly, major online platform owners are investing heavily in making their parental control tools more accessible and effective at the device, browser, and platform levels. Additionally, there has long been a robust market for third-party software that grants parents even more granular control over their children’s screen time and online access on mobile devices. The fact that these effective alternatives are easily available to any parent is another reason why broad age-verification mandates fail the First Amendment requirement to impose the least-restrictive means of limiting access to objectionable content.
Given the ready availability of better private solutions to online safety, we believe that educational efforts aimed at teaching both children and parents how to navigate the digital world more safely would be a better approach. A one-size-fits-all age-verification mandate would cause too many privacy, compliance, and free speech burdens to be a workable solution for protecting children online.