To protect kids online today ’90s law needs a review
In late January, Congress hosted Big Tech chief executives on Capitol Hill for a hearing on their collective failure to protect children online. Senators expressed outrage, and Meta’s Mark Zuckerberg was forced to apologize, but there was no consensus on what action should be taken.
That’s no surprise. Ever since the Supreme Court shot down crucial provisions of the Communications Decency Act — Congress’ 1996 attempt to prohibit the knowing transmission of obscene content to minors — legislators on both left and right have been reluctant to pass laws to protect children in our increasingly digital world. Often, they offer the same concerns about regulations’ chilling effect on free speech that the Supreme Court cited in its 1997 Reno v. ACLU decision.
They’re mistaken in doing so. The court’s precedent isn’t as insurmountable as legislators today seem to think it is. In fact, in Justice Sandra Day O’Connor’s concurring opinion in Reno, she offered a road map for future lawmakers, writing that one day technology might make it legally possible for parts of the internet to be partitioned into “adult zones” inaccessible to minors, “much like a bouncer checks a person’s driver’s license before admitting him to a nightclub.”
Nearly three decades later, it’s time to revisit her vision.
The problem the CDA was designed to address is exponentially worse today. In 1997, just 35% of households had a computer. Today, 91% of 14-year-olds have a smartphone — giving them unfettered access to the worst of the internet, which has become more toxic, violent and addictive.
There is no better example than pornography. According to a 2019 research summary from the National Center on Sexual Exploitation, “64% of those ages 13-24 seek out pornography weekly or more.” Common Sense Media reports that the average age of first viewing pornography is 12, and about 1 in 7 children first viewed online pornography when they were 10 or younger.
But while rapidly developing technology has increased the risks to children, it has also given us more tools than ever before to protect them. With the pandemic explosion of sports betting and alcohol delivery services, many states and companies have developed secure tools to verify users’ age through digital credentials without compromising privacy — a major concern of the Supreme Court 28 years ago. In the same way, states and federal legislators should require adult websites to verify their users’ ages, with stiff penalties attached.
Louisiana was first to introduce such legislation two years ago, and several states — including Virginia and North Carolina — have since passed age-verification laws, often on a bipartisan basis. More than 20 others have introduced similar legislation, including Georgia, Arizona, Wisconsin and Michigan. It’s a popular solution at the national level as well: A 2023 RMG Research poll reported that 83% of registered voters support a national age-verification law to prevent kids younger than 18 from accessing online porn.
Protecting the safety and privacy of both minors and adults is paramount. In 1996, there was very limited infrastructure to verify ages online at all, much less in a secure manner.
Today, a bevy of third-party companies are already helping platforms verify the ages of their users without turning over any user-specific data to others.
Moreover, other legal and technological innovations now ensure privacy with robust authentication.
Cryptographic techniques such as blockchain — which is used in a wide range of applications, including banking — offer the possibility of anonymous authentication and multiple levels of encryption.
Essentially, a trusted third party (whether private or government-run) with secure data on individuals’ ages would give users a secret code that allows them to “unlock” access to age-gated websites, and the website would see neither the code nor any individual data.
Several proposed state laws for age verification would also require the complete destruction of data by websites after verification, with penalties to enforce it.
Today’s internet is a very different place from what it was in the 1990s. It is more accessible. It is more dangerous. But it is also easier to regulate.
It is well past time for Congress to revisit the CDA, specifically the sections intended to protect children from indecency and obscenity online.
If senators want to prove that the outrage they showed at the hearing on child safety was more than mere theater, this would be an excellent first step.