In what is becoming a recurring theme, Mississippi became the latest state to pass a law requiring social media services to verify users’ ages and block lawful speech to young people. Once again, EFF explained to the court why the law is unconstitutional.
Mississippi’s law (House Bill 1126) requires social media services to verify the ages of all users, to obtain parental consent for any minor users, and to block minor users from being exposed to “harmful” material. NetChoice, the trade association that represents some of the largest social media services, filed suit and sought to block the law from going into effect in July.
EFF submitted a friend-of-the-court brief in support of NetChoice’s First Amendment challenge to the statute to explain how invasive and chilling online age verification mandates can be. “Such restrictions frustrate everyone’s ability to use one of the most expressive mediums of our time—the vast democratic forums of the internet that we all use to create art, share photos with loved ones, organize for political change, and speak,” the brief argues.
Online age verification laws are fundamentally different and more burdensome than laws requiring adults to show their identification in physical spaces, EFF’s brief argues:
Unlike in-person age-gates, online age restrictions like Mississippi’s require all users to submit, not just momentarily display, data-rich government-issued identification or other proof-of-age, and in some commercially available methods, a photo.
The differences in online age verification create significant burdens on adults’ ability to access lawful speech online. Most troublingly, age verification requirements can completely block millions of U.S. adults who don’t have government-issued identification or lack IDs that would satisfy Mississippi’s verification requirements, such as by not having an up-to-date address or current legal name.
“Certain demographics are also disproportionately burdened when government-issued ID is used in age verification,” EFF’s brief argues. “Black Americans and Hispanic Americans are disproportionately less likely to have current and up-to-date driver’s licenses. And 30% of Black Americans do not have a driver’s license at all.”
Moreover, relying on financial and credit records to verify adults’ identities can also exclude large numbers of adults. As EFF’s brief recounts, some 20 percent of U.S. households do not have a credit card and 35 percent do not own a home.
The data collection required by age-verification systems can also deter people from using social media entirely, either because they want to remain anonymous online or are concerned about the privacy and security of any data they must turn over. HB 1126 thus burdens people’s First Amendment rights to anonymity and their right to privacy.
Regarding HB 1126’s threat to anonymity, EFF’s brief argued:
The threats to anonymity are real and multilayered. All online data is transmitted through a host of intermediaries. This means that when a website shares identifying information with its third-party age-verification vendor, that data is not only transmitted between the website and the vendor, but also between a series of third parties. Under the plain language of HB 1126, those intermediaries are not required to delete users’ identifying data and, unlike the digital service providers themselves, they are also not restricted from sharing, disclosing, or selling that sensitive data.
Regarding data privacy and security, EFF’s brief argued:
The personal data that HB 1126 requires platforms to collect or purchase is extremely sensitive and often immutable. By exposing this information to a vast web of websites and intermediaries, third-party trackers, and data brokers, HB 1126 poses the same concerns to privacy-concerned internet users as it does to the anonymity-minded users.
Finally, EFF’s brief argues that although HB 1126 contains data privacy protections for children that are laudable, they cannot be implemented without the state first demanding that every user verify their age so that services can apply those privacy protections to children. As a result, the state cannot enforce those provisions.
EFF’s brief notes, however, that should Mississippi pass “comprehensive data privacy protections, not attached to content-based, speech-infringing, or privacy-undermining schemes,” that law would likely be constitutional.
EFF remains ready to support Mississippi’s effort to protect all its residents’ privacy. HB 1126, however, unfortunately seeks to provide only children with privacy protections we all desperately need while at the same time restricting adults and children’s access to lawful speech on social media.
