A new online age verification regime has appeared in the 119th Congress, as Rep. John James (R-Mich.) reintroduced the App Store Accountability Act. This bill would require mobile devices’ app stores to determine their users’ ages and to secure parental consent before allowing children to download applications.
Enforced age verification amounts to a show-your-papers regime for the digital world. At their core, such mandates precondition users’ access to online life on their offering up sensitive personal information. Americans should reflect on the prospect of handing the keys to the lock on their digital front door — their only portal to the online world — to the twin gatekeepers of tech companies, big or small, which would harvest and make use of user data, and the government, whose prescriptions would direct the process. Moreover, scanning one’s driver’s license — or perhaps worse, one’s face — and memorializing those data in a database damages privacy and cybersecurity (and far more data would be needed to establish the parent–child relationship as enjoined by the ASAA). Hacks and leaks routinely plague third-parties verifiers and large tech companies. Courts have found repeatedly that age verification, when imposed on speech platforms, violate the First Amendment — including opinions just this year in Arkansas, Ohio, and Texas.
After a surge of platform-level age verification mandates in recent years, the hot thing this legislative season among age-verification advocates is verification at the app store level, as the ASAA would mandate. Some say age-verification requirements are inevitable, and that the best means is to effect it at the app store or the device level. In the simple sense that this course would centralize data collection, the argument holds. But Americans should not concede to sacrifice half of the First Amendment because the forces arrayed against the whole of it seem to be gaining ground.
But the debates over where verification should be done seem to depend more on tech companies’ diverging interests than any principle. Platform providers prefer app store age verification. The proprietors of app stores prefer platform-level age verification. Other lobbies — such as the pornography industry — prefer age verification anywhere other than on their websites. Regulate anyone, each of these factions says, so long as it is not me.
As a constitutionalist, I say No — a plague on all your houses. I will not reconcile myself to unconstitutional legislation that endangers the privacy, security, safety, and free speech of American children and their parents. Age verification as a principle deserves wholesale rejection, and the First Amendment in every aspect a wholehearted defense. Lawmakers must pursue the ends of governance — including the most important ends — within the protections for civil liberties which the Constitution prescribes.
These companies deserve a modicum of grace. They have created revolutionary technologies and tremendous consumer value, and upon them the continued prosperity and technical dominance of the U.S. largely depends. They seek to advance their own good, and that of their shareholders, in their lobbying efforts as they do in the market. This is the way of things. Yet citizens and lawmakers must remain watchful against rent-seeking of all forms, from all comers, and remember that the rent-seekers often enter government buildings with plausible justifications and in the name of social and economic goods.
These companies have misled well-meaning conservative and family advocates, eager to protect children, but ignorant of the technologies they rush to regulate. In certain circles, the research of Jonathan Haidt is invoked as conclusive proof of social media’s status as a scourge of children’s mental health. However, they proceed confidently from conclusions reached in error. Haidt’s arguments hold water like a storm cloud holds in rain. He has relied on methodologically shady studies, employed dubious data, and ignored relevant yet inconvenient facts such as boys’ suicide rates in the last decades of the 20th century and modern mental health trends abroad. Moreover, although he acknowledges other factors — such as the strength of family, religion, and community — that seem likely to bear on children’s psychology as much as social media, his activism centers on unconstitutional proposals.
Those who doubt might refer to the man himself: In 2024, responding to an adverbial interlocutor, Haidt said: “If your skepticism is just that we have not conclusively proven the causal link, I think that’s a reasonable position to hold today.” He has incited, dare I say, a moral panic, yet the quality evidence a researcher of his caliber should demand remains elusive. The policy solutions he seeks most loudly to persuade lawmakers of would fracture free speech and endanger families, all from shaky ground. Bad laws are not easily undone. Proposals to make the internet unfree would not, as Haidt has said, be speedily reversed once they have hardened into statute. Government is not so flexible, nor so responsive to the manifest evidence of the errors it commits as Haidt assumes.
In panicked times, well-intentioned, concerned citizens and statesmen often forget the most fundamental things in their haste to do something, anything, to ameliorate the perceived crisis. But all experience has shown that majorities often sprint past prudent objections to even their best-intended aims, violating the liberties and property of dissenters in their haste. This sort of mad dash towards unthinking injustice is precisely what the Constitution intended to slow or halt. As James Madison wrote in 1792, “Conscience is the most sacred of all property.” From this “Liberty of Thought,” wrote John Stuart Mill, “it is impossible to separate the cognate liberty of speaking and of writing.” The First Amendment safeguards free speech, the act that proceeds from a free conscience.
It is inarguable that protecting children, online and off-, is a fundamental duty of a government to its people. But in a free republic, the legislator’s task is to do so without fracturing the Constitution’s guarantees.
