Age verification vendors and advocates have scored a victory: The lobbying group representing many of the world’s largest and wealthiest technology companies has lost an appeal against the passage of the California Age Appropriate Design Code Act (CAADCA). In its decision, which lifted a preliminary injunction by the Court for the Northern District of California, the United States Court of Appeals for the Ninth Circuit ruled against NetChoice, whose member companies include Google, Meta, Facebook, Amazon, Netflix, Yahoo and Ebay.

The decision is something of a hybrid, concluding that NetChoice failed to show that they would succeed in proving that most of the CAADCA is unconstitutional, particularly the provisions restricting the collection, use and sale of children’s data. But some of it may be unconstitutional.

The court’s opinion affirms the district court’s decision to agree with NetChoice that it is likely to succeed in showing that the CAADCA’s requirement that “covered entities must assess and mitigate the risk of children being exposed to harmful or potentially harmful online materials is manifestly in violation of the First Amendment.” The requirement for a privacy impact assessment (DPIA) is described as particularly dubious on a general constitutional level.

However, the appeals court vacated the remainder of the district court’s preliminary injunction, “which not only failed to adequately consider the prima facie nature of NetChoice’s First Amendment claims against other provisions of the CAADCA, but also erroneously overstated the likelihood that NetChoice would ultimately succeed in demonstrating that the unconstitutional portions of the CAADCA were inseparable from the valid remainder.”

In other words, even if the CAADCA can be shown to contain certain constitutional violations—such as the requirement to conduct a privacy impact assessment, which both courts have found likely to be unconstitutional—the good things are salvageable (or, in the court’s language, “severable”).

AVPA welcomes decision that online age verification is not unconstitutional

The Age Verification Provider’s Association commented on the ruling on LinkedIn, noting that “the 9th Circuit joins the 5th Circuit in NOT finding that verifying a user’s age online is fundamentally unconstitutional.”

“Notably, the panel of appellate judges does not repeat Judge Beth Labson Freeman’s misplaced criticism of age estimation, which incorrectly concluded that it is ‘quite similar in practice to age verification and … generally requires either documentary proof of age or an automated estimate based on facial recognition.’ Age estimation technology is NOT the same as recognition,” AVPA says, “and users no longer need to share their ID with a third party to prove their age, as document verifications can now be performed on the user’s own device.”

The post quotes California Governor Gavin Newsom saying of the CAADCA: “California passed this nation-leading law to protect children from predatory practices. Instead of taking these common-sense protections, NetChoice chose to sue – yet today the court largely sided with us.” Newsom is calling on NetChoice to drop its lawsuit.

Au10tx points out that age verification is also an economic problem

One thing is certain: we need better age verification. This is what Au10tix wrote in a blog post about what regulations like CAADCA mean for businesses and individuals. Authors Amy Lurie and Noa Shai go beyond familiar arguments about pornography and drugs and touch on a very sensitive issue: the wallet.

“As tech-savvy moms, we’ve seen firsthand the problems created by weak age verification on digital platforms, especially in the gaming world,” they write. “It’s not just about keeping harmful content out – it’s about combatting the behavior these platforms can encourage. For example, in-app purchases can quickly spiral out of control when a child unknowingly incurs charges via a linked credit card.”

For this reason, the authors say, “stronger age verification and parental controls, as required by the new regulations, are not just nice to have – they are necessary.”

Article topics

Age Appropriate Design Code (AADC) | age verification | AU10TIX | AVPA | biometrics | California | digital identity | lawsuits