How does a constitution written over 200 years ago adapt its set of rules for governing to the age of the Internet? This is a question the US Supreme Court will tackle on January 15, when it considers if the elected representatives of the people of the Great State of Texas should be allowed to place common sense restrictions on adults wishing to access pornography online, in order to prevent children from stumbling across obscene content.
The First Amendment protection of free speech has never been absolute. As those who recently accused manufacturers of voting machines of bias found to their cost, defamation is still illegal. And famously, you cannot shout “fire” in a theater, no matter how free you believe your speech to be. When it comes to pornography, there is already a similar exception – the Miller Test established by the Court in its Miller v. California decision of 1973. This creates a constitutional exception that allows for regulation of sexually explicit content.
But with the 2004 Supreme Court decision in Ashcroft v. ACLU, the ability of states to restrict children’s access to obscene material online was rendered moot. “Strict scrutiny” must be applied to any measure introduced to limit access to porn by children. That means the methods deployed must comprise of the least restrictive options which deliver the policy’s objective.
It was then that the Supreme Court decided that asking adults to prove their age with a credit card number was asking too much when it ought to be possible to keep kids off porn sites using what it deemed as less intrusive means: “filters”. The Court did not define in any detail what it meant by filters, but it placed its bet on these being an effective way to keep children away from content intended for adults only.
The Supreme Court lost that bet.
In 2024, the evidence is clear that children, in the US and globally, are seeing more porn, on more devices, across more platforms, for more time than ever before. The experiment with filtering has failed spectacularly.
So, the question before the Court now is what should it try instead? It is not alone in asking this question, as governments and regulators around the world have been tackling it as well. And whether you look to Australia, the European Union, the UK or Canada, you will find that requiring those who profit from the publication of porn to apply age verification to their users is their unanimous conclusion.
Those countries are not, of course, subject to the First Amendment, so for the USA, it is also necessary to make the case that proving your age – not your identity – online is easy and not an unacceptable burden on the constitutional rights and freedoms of adults.
The case before the Supreme Court arrived there because the Fifth Circuit Court of Appeals decided firstly that protecting kids from pornographic content was a rational matter, not subject to strict scrutiny, and secondly, that you can now prove your age online with no more inconvenience than you encounter entering a bar.
Our amicus brief to the Court substantiates this second point. Indeed, we explain how the latest state-of-the-art technology can not only prove your age in a way that technologically guarantees your privacy, but that reveals even less personal data than you share with the staff at the door of your local bar. Among the solutions provided by members of our trade association are apps that can read your driver’s license and compare it to a selfie entirely on your smartphone, with no personal data ever leaving the palm of your hand. One of our members can establish the fact that you are an adult with over 99% accuracy from you videoing three movements of your fingers. Another will confirm you are 18+ based on nothing more than your email address. Facial age estimation is now accurate within a little over one year, using only a mathematical plan of your face, quite insufficient to ever identify you personally. No age verification provider ever tells a porn site who you are – only that you are over 18.
The tech also now exists to allow you to prove your age once to buy a bottle of wine online and use that same age check with little or no further action to access a violent video game or a porn site, still never revealing your identity.
After hearing oral arguments, it will be up to the Justices of the Supreme Court to decide if states should be able to apply the same age restrictions they require of strip clubs, casinos, and bars to online porn sites. Our goal in supplying a legal brief is that they should do so fully aware of what the current technology can do. We don’t want them to give up on protecting kids because of a misunderstanding of how age verification works, or because of a rising tide of misinformation from those who believe the Internet should be a space free from the rule of law.
If American technology can put a man on the Moon – and now even catch the spacecraft that propelled him there back on the tower from which it was launched – it can obviously verify the age of a user on the Internet without disclosing their identity and do so cheaply and conveniently in a matter of seconds. Let the Court deliberate the constitutional questions and the welfare of America’s youth, but let the facts about age verification technology guide their decisions.
