What the Case Was About

Texas enacted a law, H.B. 1181, that required commercial porn websites to implement “reasonable age verification” techniques, such as a government ID scan or credit card transaction, to determine whether its visitors were over 18 years old. The Free Speech Coalition and its aimici argued that the law violated the First Amendment by unduly restricting legitimate adults’ access to protected speech. The case made its way up to SCOTUS.

What the Court Decided

Justice Clarence Thomas, writing for a 6-3 majority, upheld the Texas law.

• “Scrutiny” under scrutiny. The critical part of the court’s decision (and the linchpin of many similar First Amendment analyses) was what level of “scrutiny” courts should apply. Essentially, the higher the scrutiny, the more difficult it is for the law to survive a Constitutional challenge. The Fifth Circuit (whose decision was appealed up to SCOTUS) believed the lowest level of scrutiny – “rational-basis review” – ought to apply. The Free Speech Coalition (along with the three dissenting Justices) believed the law should be analyzed under “strict scrutiny” - the highest standard.
  
  The conservative SCOTUS majority ultimately went with “intermediate scrutiny” here. Under intermediate scrutiny, a law can be upheld so long as it “advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” The majority then held that under this intermediate standard, H.B. 1181 was constitutional.
  
  
• “[A]dults have no First Amendment right to avoid age verification.” Age verification on the internet requires a user to give up some level of personal information, which the law’s challengers and the dissent argued could have a chilling effect on adults and could result in privacy and security risks. The majority acknowledged these burdens, but concluded they were only “incidental,” not “excessive,” and ultimately outweighed by the government’s important interest in protecting children from accessing online pornography.

What this Decision Means for the Future

Now that SCOTUS has spoken and clarified that intermediate scrutiny is the standard to use for future age verification laws, here’s what we predict for the future: 

1. Expect a flurry of new US laws. In addition to laws directly targeting the porn industry, we expect there will almost certainly be new laws passed in the United States that will attempt to restrict minors’ access to other types of “harmful” content. In fact, there are already a number of US state laws already passed that are intended to restrict minors’ access to social media services (more on that below). We can expect that proponents of these new laws will argue that they are Constitutional under intermediate scrutiny, though it’s not clear if judges will be willing to extend this ruling outside the context of the context of commercial pornography sites.
   
   
2. Some companies will adopt age assurance voluntarily. The SCOTUS majority set a clear precedent that “adults have no First Amendment right to avoid age verification.” In light of this, we expect many companies will soon require age assurance/verification for their US users, even in advance of a law that specifically requires them to do so. Many US companies have already implemented age assurance/verification outside of the US in order to comply with international laws like the UK Online Safety Act, but were waiting to see how SCOTUS ruled before turning similar features on for US users.
   
   
3. Companies will need to be smart about what age verification methods they use. Fail to implement age verification or go with a method that is ineffective or inaccurate, and you risk getting in trouble with a regulator. Go with a method that collects too much personal information or suffers a data breach, you risk alienating your users and also getting in trouble with a regulator! Cost is also a huge factor: as Justice Kagan pointed out in her dissent, current age verification systems can cost “at least $40,000 for every 100,000 verifications,” a cost that is likely not feasible for most online operators. (The good news, per footnote 14 of the opinion, is that at least Texas seems to acknowledge that other, potentially cheaper technologies like biometric facial age estimation could also work.) What is a company to do?

How k-ID Helps

1. k-ID tracks where age verification/assurance is required around the world. 

As part of our KnowledgeKit, we track the age assurance requirements around the world, which we make available as part of our individual country surveys as well as through interactive maps, all updated regularly. We also recently introduced a US State Law Tracker, which also includes information about age assurance laws as they come into force.

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2. We provide a variety of age verification solutions ready to deploy at scale, including a privacy-preserving facial age estimation solution.

Through our partnerships with a variety of age verification vendors such as Stripe, Veratad, Privately, and others, we offer a wide variety of age verification solutions tailored to the laws of each jurisdiction you operate. k-ID has also worked extensively with Privately to offer privacy-preserving facial age estimation tool currently in use by clients such as Discord. This facial age estimation technology processes all sensitive information on the user’s device, which is not only more private and more secure, but also easier and cheaper to deploy than other solutions that require external processing of sensitive data.

3. We’re hard at work at other initiatives to change the conversation around age verification entirely.

We think there exists a tremendous opportunity to change the entire industry when it comes to age verification online. If you’re interested in learning more about what we’re working on, please get in touch with us here.

If you want to know more about the US State Law Tracker and make sure to join or webinar on the 7th of August, register your attendance here.