Imagine life in a place in which you must show your papers to carry out many essential and ordinary tasks in your day — to start the car, or to pump gas, or to buy groceries. Don’t fret, the authorities say, this is simply a public-safety measure; after all, citizens are free to do what they like — so long as they provide the proper documentation.
Such an oppressive regime seems intolerable, impracticable, and out of the question. Americans have a healthy fear of jackboots and Big Brotherism, and the state lacks the sheer manpower to station officers outside of every home.
Those assumptions prevail only in the physical world. In the digital world, however, different conditions obtain; due to the intangibility and novelty of online life, and novel worries about the effects of technological change, a pervasive show-your-papers regime has become thinkable. Many in both political parties have come to think mandated age verification — the show-your-papers regime of the digital age — necessary to make the internet safe, particularly for children.
The latest of Congress’s age-verification proposals, the Children and Teens’ Online Privacy Protection Act (COPPA 2.0), advanced late last month from the Senate Committee on Commerce, Science, and Transportation. The bill would amend a 1998 law — the original “COPPA” — designed to regulate internet platforms’ collection and handling of minors’ data. The COPPA of 1998 is not to be regarded as sacred and inalterable. Yet despite its advertising as a common-sense reworking of extant law in light of a quarter century of experience, COPPA 2.0’s design departs dangerously from that of its predecessor.
Perhaps COPPA 2.0’s most significant deviation is the standard by which websites are to be held liable for identifying the age of their users. Current law binds only websites designed for children or those with “actual knowledge” that the user in question has yet to reach the age of 13. COPPA 2.0, alternatively, would enact a lower standard of knowledge, replacing “actual knowledge” of the presence of underage users with “actual knowledge or knowledge fairly implied on the basis of objective circumstances” (emphasis mine). Under such nebulous and uncertain language, litigation-averse platforms would find themselves all but enjoined to institute age verification widely to ensure they keep well clear of liability. Americans, to go about the everyday business of their digital lives, would be compelled to proffer up sensitive personal information — likely in the form of a scan of government documentation or a facial scan — to Big Tech companies, small, cybersecurity-challenged websites, or third-party age verifiers, all prone to hacks and data breaches.
The proponents of COPPA 2.0 object that requiring “actual knowledge” allows platforms to avoid treating underage users as underage. This objection is not without merit, but the solution proposed by COPPA 2.0 is woefully ill-advised. Policies must be crafted carefully to avoid causing worse harms than those they purport to ameliorate. Perhaps COPPA 2.0 would succeed in giving online platforms more accurate age information — although many young people would likely skirt its requirements — but its incentives for age verification would yield the sorts of unintended consequences that perpetually dog ambitious regulators. Besides their privacy, Americans’ civil liberties would fall under threat, not to mention the economic and innovative dynamism of the digital economy. In the evergreen words of economist Thomas Sowell, “There are no solutions. There are only trade-offs.”
Most objectionable behaviors could be stopped by the government, if only the government were to deploy mass surveillance and invasive enforcement mechanisms. In our free society, however, the citizenry and those we elect have deemed such overreaches inimical to liberty, and therefore unacceptable. Regulation of the digital world should proceed upon the same premise: proposals that threaten the fundamentals of digital liberty — including those requiring online platforms to know the age of their users, which, implicitly or explicitly, enforces age verification — ought to be scrapped. Other means to safeguard children online must be pursued.
A free and open internet cannot survive a regulatory deluge. Life increasingly occurs online, and lawmakers must protect privacy and civil liberties as enthusiastically in the digital world as they do in the physical one.
