Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
The Act is akin to a law that would require every bookstore to verify
the age of every customer at the door and, for minors, require parental
consent before the child or teen could enter and again when they try to
purchase a book.
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
> The legal question is posed: Who is liable under Roman law?
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Seems to be less of an issue in practice, as the level of detail is pretty clear unless you're operating at the "bleeding edge" of legal understanding, in which case I imagine you can afford to hire someone to figure out the details to you.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
A corollary to your second paragraph is that you can concentrate power if you keep the masses from understanding it fully or able to practice it competently. This is why passing the bar exam is so difficult. What if most criminals were as adept at fighting their charges as they are at physically fighting? (Meaning: won a healthy percentage of the time). The system is designed to crush people and concentrate wealth and power in the hands of a few.
One of the awesome things about the American Constitution is that it's not really written in complicated language. Of course this hasn't made things straightforward or easy.
In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
> Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all.
Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47.
Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
"The insistence on perfect age verification requires ending anonymity. Age verification to the level of buying cigarettes or booze does not.
Flash a driver's license at a liquor store to buy a single-use token, good for one year, and access your favorite social media trash. Anonymity is maintained, and most kids are locked out.
In the same way that kids occasionally obtain cigs or beer despite safeguards, sometimes they may get their hands on a code. Prosecute anyone who knowingly sells or gives one to a minor."
This is the difference between standing on a street corner shouting "shit" and taking a shit on a street corner.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
Most modern social media is the latter, but for trash and propaganda, rather than sex. So why doesn't the court apply the same rule that it's okay to check IDs on entry?
Probably because there are reasonable principles to draw on about withholding access to explicit sexual content from children, but there are no similar principles about trash or propaganda. Trash and propaganda are both pretty clearly within the remit of permitted free speech.
Bookstores that carry porn are porn shops. Apps that carry porn are porn shops, and since the app store has apps that carry porn, the app store is a porn shop.
Can you back that up? Basically nowhere else I'm aware of do we draw that kind of expansive categorization. A gas station isn't a book store if they have one rack of books next to all the snacks. A book store isn't an electronics shop if they have a rack of e-readers.
The world is very complex. It's effectively impossible to write laws on most topics that perfectly capture all nuance. Which is why we have a judicial system that can look at a law and a situation and say "nope, this law (or this usage of a law) is incorrect". Which is what's happened here, where the court issued an injunction on enforcement of the Texas law.
Far from it, but I'd rather not drag things so severely off topic. I'll just point out that you used to be able to mail order some surprising (at least by modern sensibilities) stuff.
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Because that's the way our courts have ruled on it.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
That didn't happen until 1968 and by that time the constitution was basically toilet paper. The answer is ever since the progressive (and on some occasions, before that) era the constitution was more of a guideline, occasionally quoted by judges much like you can quote the bible to support pretty much anything if you twist it enough.
The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
Perhaps if you had examples or decisions to explain what you're talkinh about, you would make your point better?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
If someone set a bomb using a speech recognition algorithm looking for specific elements of political speech, and I knowingly detonated it with that kind of political speech, would the act of my political speech be protected speech?
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
This protection is not provided by judges or the Bill of Rights. It’s provided by the attitude and behaviours of all Americans. If enough Americans start treating 1A as conditional, the court decisions will slowly start reflecting that. The system won’t protect the people from themselves.
Yeah, but slowly is an understatement. Scotus judges serve until death, and they're appointed rather than elected. Even then, they're allowed to make very unpopular decisions.
Judges are struggling to find the analogies known to them from the world of 70's. Apps are not like books only. They are like movies, sports, tools, postal mailbox, pet, friend, bank, money, shop, cab and anything you can imagine. When movies require age-restriction, apps can do so too.
And which movies, when broadcast on TV (i.e. viewed inside people's homes), verify the age of everyone watching before continuing? Your analogy is just as flawed.
When movies are broadcast on TV, they must first be censored according to the FCC's rules. Of course this only applies to broadcast, not cable, but cable doesn't get broadcast into people's houses without them signing up for it.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
> As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
> The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history. Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
>The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
You don't understand that news item. The police didn't search a specific person's account, they asked Google (who gave it to them voluntarily) anyone who searched the victim's address in the past week. Nothing unconstitutional about that.
The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
Not defending the law but questioning your interpretation.
Does requiring by law an age of 21 to enter a bar violate freedom of assembly? Lots of important political events and discussion historically in the US have occurred at taverns.
As a UK subject, with a government that has begun implementing the online safety act, prosecuting people for tweets that clearly weren't inciting violence and getting rid of jury trials for cases with fewer than five years sentences, I look on with envy at your constitutional protections of the individual.
The problem interpreting the intent of that tweet is that Lucy Connolly herself admitted to authorities she was inciting violence so becomes hard to build a defence at that point. Incitement isn’t first amendment protected in the US either https://codes.findlaw.com/us/title-18-crimes-and-criminal-pr...
The major part of this case is that without a jury trial he'd probably have had zero chance of being cleared. Countless others were persuaded to plead guilty to avoid a long time in prison and then were given long sentences. h
he was strong enough not to give in.
You are right, freedom of expression in the US doesn't cover inciting violence, but it has an high bar, imminent lawless action:
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
> Every book in a bookstore can be verified because the content can be known and audited
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
That’s an argument that sounds convincing in principle, but in reality I can walk into any independent bookstore and find it’s not filled with porn and AI slop, so clearly there is a successful vetting process going on. Namely, the publishers vet the books then the bookstore owner only has to vet the publishers. A proof of concept internet equivalent is if I scrape a bunch of trusted YouTube channels onto a NAS and give my kids access to that NAS but block YouTube access otherwise.
This hypothetical independent shop you walk into is not filled with slop because it's curated; the store is intentionally keeping its inventory to a manageable level so that it can be screened first.
If the owner stopped caring and just decided to let any book that passed through the automated "does this book immediately and actively harm the customer?" screening machine then you'd have something that approximates the app stores.
Yes, but you can't stop eight year olds from grabbing a James Patterson or Stephen King novel from the shelf. Their parents should, and some librarians might throw a moral exception to their choice, but if they wanna read It, they're gonna read It.
Enforcing anything other than that is a huge 1A violation IMO.
Phrasing this as "you" versus "a second party to the child" involves me, where I originally did not present a statement that would give the impression that I'd be involved. Keep me - "you" - out of it. I'm simply making fun of this analogy.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
Who cares if you don't like his analogy? His point is that this is a violation of the 1st Amendment. Which, by the way, does not mention anything about content being known or not.
I should have contacted you, Refreeze98, prior to posting my comment that contained far less of an abstraction than you've condescendingly supplemented.
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
Beautiful :-\ But it's not a backdoor on devices, it's eavesdropping push notifications when they pass Google's or Apple's servers.
Corollary: a secure notification should consist of a link with a random number token which opens the real message via an authenticated API on an encrypted channel. Would look a bit weird though. iOS at least has silent notifications for that.
What also gets glossed over is the privacy tradeoff: to "protect minors," you end up collecting more sensitive data about everyone, including adults downloading trivial apps
I spend well over a month now on the topic to implement the different half cooked APIs into our apps. The chance that this gets overturned or blocked was high but we had to race anyways.
I’m curious what this means for similar legislations in others states line Utah and Louisiana that where planned to get into effect later this year.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape.
I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible.
Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada…
There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks.
Well let’s see what happens next.
Text has always been treated differently than images or video, partly for historical reasons and partly because regulating it runs straight into classic First Amendment landmines
Because people were so sick of their shit, and they already got their asses beaten so hard that they turned a fundamentalist city into an atheistic one. Banned in Boston used to be a thing. Boston itself got sick of that puritan bullshit.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
Text just fundamentally isn't nearly as graphic as images/video.
Write the most sexually disturbing sentence you can come up with and it's going to be rather meh and possibly quite comical. And any of the gravity that it does have comes from the reader's ability to generate the visuals themself which is mostly out of reach for children who don't have the experience to necessarily know what's even being described.
I don't understand why it feels like out of the blue there is suddenly a rampant and somehow worldwide effort left and right to increase censorship, age verification, etc on the internet. Also I don't get why it seems like so few people care in comparison to years ago during the whole SOPA/PIPA thing where there seemed to be widespread and significant vocal opposition.
On the age verification thing the only reasonable proposition i've heard would be a feature that allows parents to set some setting that gives a device users age or age range for mobiles and tablets. I think this covers a reasonable percentage of use cases if your goal is actually protecting kids and not just using that as deceptive cover to sneak in widespread surveillance laws. A simple setting that says for example this ipad user is 10-13yrs is privacy preserving enough and would not negatively impact adults and because it would be coming from the device itself would actually be harder to get around vs VPN's or spoofing IDs, etc.
The idea of trying to address all devices in all scenarios is absolutely preposterous in my opinion.
1. easy wins for politicians in conservative areas of "won't somebody think of the children?!?!" so they can look like they're doing stuff to stick it to big tech while appealing to their voters' sensibilities
2. wanting to de-anonymize the internet as much as possible in the name of CSAM and anti-terrorism but is actually about wanting unchecked surveillance. the same reason we have to bang the drum against anti-encryption laws that they try to pass every several years
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
So, the law seems broken as judges question and interpret a law as unconstitutional. If every judge across the country does this, we can dismantle entire law. Awesome. The power of capitalism and platform monoply is at full display.
Not so fast partner, the Supreme Court has upheld as Constitutional, routine and regular administrative requests including documentation to prove age and income. Otherwise, we would have a paper tiger Income Tax.
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
Porn has always been treated differently than other speech that is why most age verification laws want for it first. As for your other examples those are all technically voluntary, as it’s unlikely a government mandate that nobody under 17 can watch an R rated movie would pass constitutional muster. Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
> Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
There are other means to gaining power, of course.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47.
Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.
"The insistence on perfect age verification requires ending anonymity. Age verification to the level of buying cigarettes or booze does not. Flash a driver's license at a liquor store to buy a single-use token, good for one year, and access your favorite social media trash. Anonymity is maintained, and most kids are locked out. In the same way that kids occasionally obtain cigs or beer despite safeguards, sometimes they may get their hands on a code. Prosecute anyone who knowingly sells or gives one to a minor."
It's a dumb law, but, devil's advocate - isn't that how porn shops work? And porn shops also sell some non-porn items, too.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
You might arrive at an old saying, about what the internet is for.
https://en.wikipedia.org/wiki/United_States_free_speech_exce...
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
Wasn’t it the other way around? E.g. the fir amendment was pretty much ignored (barely a guideline) by everyone almost until the 1900s.
Even the founders themselves discarded it almost entirely just a few years after the constitution was ratified..
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
[1] https://en.wikipedia.org/wiki/Morse_v._Frederick
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
https://en.wikipedia.org/wiki/Strict_scrutiny
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
I don't understand your point.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
Neither do apps, so it seems apps over an ISP are more equivalent to adult content on cable tv, which do not require age verification to watch.
Movie theatres require a chaperon for minors for R rated films? (And theatres often block some ages entirely.)
That's a fundamental difference than the heavy handed approach of using the state to mandate KYC laws to post on the internet.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
https://www.hackerneue.com/item?id=46329186
Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
(I saw a Telly recently. This device should be terrifying, but "free" makes people make weird choices.)
Does requiring by law an age of 21 to enter a bar violate freedom of assembly? Lots of important political events and discussion historically in the US have occurred at taverns.
The major part of this case is that without a jury trial he'd probably have had zero chance of being cleared. Countless others were persuaded to plead guilty to avoid a long time in prison and then were given long sentences. h he was strong enough not to give in.
You are right, freedom of expression in the US doesn't cover inciting violence, but it has an high bar, imminent lawless action:
https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
Yes in Lucy Connolly's case she admitted to inciting violence, though I'm not certain what she did justifies a 31 month sentence.
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
If the owner stopped caring and just decided to let any book that passed through the automated "does this book immediately and actively harm the customer?" screening machine then you'd have something that approximates the app stores.
[Image with a bookstore filled with AI slop]
Enforcing anything other than that is a huge 1A violation IMO.
Phrasing this as "you" versus "a second party to the child" involves me, where I originally did not present a statement that would give the impression that I'd be involved. Keep me - "you" - out of it. I'm simply making fun of this analogy.
Correct analogies should be used to present the most fool proof argument.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
I think most laws should look reasonable from the common-sense viewpoint. And when they don't, there should be a serious explanation.
Corollary: a secure notification should consist of a link with a random number token which opens the real message via an authenticated API on an encrypted channel. Would look a bit weird though. iOS at least has silent notifications for that.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape. I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible. Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada… There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks. Well let’s see what happens next.
I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
> I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
It's popular with women and basically invisible to men.
> It's popular with women and basically invisible to men.
Mostly true, and this might be a reflection of reality, but certainly not a justification.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
Write the most sexually disturbing sentence you can come up with and it's going to be rather meh and possibly quite comical. And any of the gravity that it does have comes from the reader's ability to generate the visuals themself which is mostly out of reach for children who don't have the experience to necessarily know what's even being described.
On the age verification thing the only reasonable proposition i've heard would be a feature that allows parents to set some setting that gives a device users age or age range for mobiles and tablets. I think this covers a reasonable percentage of use cases if your goal is actually protecting kids and not just using that as deceptive cover to sneak in widespread surveillance laws. A simple setting that says for example this ipad user is 10-13yrs is privacy preserving enough and would not negatively impact adults and because it would be coming from the device itself would actually be harder to get around vs VPN's or spoofing IDs, etc.
The idea of trying to address all devices in all scenarios is absolutely preposterous in my opinion.
1. easy wins for politicians in conservative areas of "won't somebody think of the children?!?!" so they can look like they're doing stuff to stick it to big tech while appealing to their voters' sensibilities
2. wanting to de-anonymize the internet as much as possible in the name of CSAM and anti-terrorism but is actually about wanting unchecked surveillance. the same reason we have to bang the drum against anti-encryption laws that they try to pass every several years
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
Like age laws for vape pens vs age laws for shopping.
You cannot narrowly target a medium.
Presumably for the same reason why libraries can not be targeted narrowly
Google just sent me a email today that Google would push forward
Reminds me of HTTP error code 451, Unavailable For Legal Reasons.
I can imagine some future programming language with a LegalRestrictionException.
Thanks, Obama
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
Good thing that isn't what happened. It is called an "analogy" and is not a factual statement of equivalence.
The MPAA rating system and adhering to it is completely voluntary.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
That is obvious harm.