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).
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.
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
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.
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.
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.
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.
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.
That presumes that SCOTUS represents the "general" attitudes of all Americans. But when they overturned Roe v. Wade, they explicitly went against the majority consensus of Americans.
General != majority, but SCOTUS is not a gauge of American opinion. Perhaps a better example is Brown v. Board of Education, at a time when a very large portion of the public was not in favor of integrating the races in public schools.
TL;DR: Protection is absolutely provided by the courts, which is the highest authority on what the Constitution (and Amendments) and other laws mean.
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.
"Have occurred" probably mostly includes incidents before children were legally forbidden from bars. The 21yo limitation as a uniform restriction only dates back to circa 1980s.
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.
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.
> 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?
> 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.
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.
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.
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
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.
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.
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[ 4.4 ms ] story [ 55.5 ms ] threadWe love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
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
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.
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.
General != majority, but SCOTUS is not a gauge of American opinion. Perhaps a better example is Brown v. Board of Education, at a time when a very large portion of the public was not in favor of integrating the races in public schools.
TL;DR: Protection is absolutely provided by the courts, which is the highest authority on what the Constitution (and Amendments) and other laws mean.
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.
Thanks, Obama
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.
Google just sent me a email today that Google would push forward
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
That is obvious harm.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
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.
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.