Pursuing Kids Safety through Online Age Verification Legislation

State and federal legislators across the United States—and around the world—are attempting to address the current loopholes in age assurance techniques by requiring online operators to verify the ages of their users (often through government-issued identification).

In 2022, Louisiana became the first state to mandate age verification via government-issued ID for users accessing adult content online.¹ In 2023, Arkansas, Mississippi, Montana, North Carolina, Texas, and Virginia followed suit.² Currently, these bills require online operators that “distribute material harmful to minors” and “contain a substantial portion” (or greater than 33.3 percent) of such material to verify users’ ages. This type of requirement can impact a variety of online operators, but is mainly intended to reduce youth access to online adult content and sales that are age-gated in real life. However, Utah and Connecticut, and additional laws in Louisiana and Arkansas,³ went further with age verification mandates, extending the requirements to social media platforms and their users.⁴ This trend raises two immediate concerns.

First, age verification laws impact all users, not just youth. Age verification requirements can exclude users reluctant to disclose their government-issued ID or those without such ID, creating a chilling effect on their speech and additional barriers to accessing protected speech. If an online operator cannot, with certainty, verify the ages of users, it may choose to censor or restrict content that is available for all users—or even suspend services within a state entirely—to avoid legal action and liability.⁵ While lawmakers may intend to only apply restrictions to specific content or to overall platform access to users of a certain age, the impact of broad and vague age verification legislation can be far reaching. For example, in response to age verification requirements, Pornhub, one of the largest adult content operators, removed access to all users in Mississippi, Utah, and Virginia.⁶

Second, since many of these laws are enforced through an individual’s right to private action, the courts’ full interpretation of the law and how it applies to particular content and online spaces is unclear and will unfold only as lawsuits against companies are brought forward. As courts determine the scope of “material harmful to minors,” groups and topics that are already vulnerable to politicization may be targeted—as seen in the recent efforts to ban LGBTQ+ content from libraries, remove critical race theory from school curriculum, and restrict access to reproductive health care sources.⁷

Creating barriers to speech and targeting access to specific content raises serious constitutional concerns. Even age-gating scenarios meant to reduce youth access to adult content have previously been found to be unconstitutional for overbreadth of impact.⁸ While there is a compelling government interest to restrict youth access to age-inappropriate content, the movement still faces strict constitutional challenges. These challenges will only be amplified by age verification requirements for social media platforms, which have become, for many people, a cornerstone of full social, economic, and political participation in modern life.⁹ Legal challenges have already been brought forth in some states, but legislators at the state and federal level are nevertheless continuing to pursue age verification mandates.

As states move forward with differing age verification bills, online operators will face challenges navigating the patchwork of laws that come into effect. As with previous attempts to require age verification, federal courts have blocked laws in Arkansas and Texas for being unconstitutional.²¹ Courts also blocked the California Age Appropriate Design Code in part for its inadvertent age verification requirements, since the law mandated additional safeguards for all web services “likely” to be accessed by users under 18 years old.²² However, legal challenges in Utah and Louisiana were dismissed on the grounds that the filers sued state officials, who do not have enforcement authority, as those laws enable a private right of action for users.²³ Most recently, a federal appeals court upheld Texas’s age verification law, overturning a lower court ruling.²⁴ Altogether, competing court decisions and precedents show that the legality of age verification requirements for either online adult content or social media is an unsettled question.

National governments are also taking on the challenge of improving online safety for youth through a variety of methods, including age verification. Age verification requirements implemented at a national level will have a rippling impact across global online spaces. As online operators reconfigure their internal processes for compliance, national legislation could set new precedents for how users—even those beyond their borders—access content online.

At the federal level in the United States, age verification and youth online safety bills have focused on social media companies. In previous sessions, a range of bills, including the Making Age-Verification Technology Uniform, Robust, and Effective (MATURE) Act and Protecting Kids on Social Media Act sought to implement age restrictions and age verification, respectively, on social media platforms.²⁵ Neither of these bills have been reintroduced in 2024.

The most prominent piece of federal legislation is the Kids Online Safety Act, which would establish a “duty of care” for platforms, or establish a legal responsibility for knowing or reasonably knowing if the user is a minor and taking the appropriate steps to mitigate and reduce online risks.²⁶ Initially introduced in May 2023, the bill faced criticism for its restrictions on free speech and inadvertent age verification requirements.

The bill has since been amended twice, garnering bipartisan support for tackling kids safety online.²⁷ However, criticisms of the bill remain.²⁸ The most recent iteration of the bill removes explicit age verification requirements and includes a provision that would require a study “evaluating the most technologically feasible methods and options for developing systems to verify age at the device or operating system level.”²⁹

Countries outside the United States are looking to age verification technologies to enforce online restrictions on content and services that may be harmful to children. And they are seeing similar challenges and criticism that face U.S. efforts.

The United Kingdom’s Online Safety Act of 2023 requires and places responsibilities on social media platforms to take the necessary measures to verify a user’s age.³⁰ This legislation is facing backlash for potentially compromising user privacy and safety online.³¹

Australia’s eSafety Commissioner submitted an age verification roadmap weighing potential methods and impact.³² Based on the findings, the Australian government decided against implementing any age verification measures citing privacy and security concerns, and instead suggested alternative avenues to creating safer online environments for children.³³

Similarly, in 2022, the French Commission on Information Technology and Liberties (Commission Nationale de l’Informatique et des Libertés) released a report concluding, “there is currently no solution that satisfactorily” can provide reliable age verification and complete coverage of the population while respecting user data privacy and security.³⁴

The European Union’s euCONSENT project is attempting to develop an open, secure, and interoperable solution network for age verification and parental consent.³⁵ The project is currently in the second phase of its pilot, and it could provide valuable insight into applying age verification requirements.