The landmark settlement state attorneys general secured against Meta will require more robust age verification methods, alarming First Amendment advocates who worry it will intrude on users’ privacy and lead to dangerous crackdowns on free speech.
Meta agreed to pay states up to $17.1 billion, more strongly enforce its ban on children under 13 accessing Instagram and Facebook and limit teenagers ages 13 to 17 to two hours per day on the platforms, with additional nighttime and school-hour restrictions.
The settlement withholds $5 billion until the states can get Meta’s main competitors – Snap, TikTok and YouTube – to adopt similar practices.
To enforce the usage restrictions, the settlement calls for Meta to use “enhanced age assurance measures” for both new and existing Instagram and Facebook users. Adults who decline to participate in the age verification process would be subject to the default protections required for teenage users.
“I see this latest Meta settlement as a backdoor effort to mandate age verification without doing it through [state] legislatures or the federal government, where there’s been gridlock for years on that question, in large part due to the First Amendment and privacy concerns that it raises,” Nico Perrino, executive vice president of the Foundation for Individual Rights and Expression, told The Washington Times.
The settlement does not prescribe the exact age verification process Meta must use, allowing the company to choose between existing commercially available tools or developing its own proprietary methodology.
The Age Verification Providers Association, a trade group for companies that provide commercial age assurance technology, argues that independent providers should conduct age checks for the platforms that need them and only return a yes-or-no answer to questions asked, such as whether the user is over 18.
“Adults can continue to browse, read and speak anonymously after an age check, just as showing ID at a nightclub door does not mean the bartender records every drink you order against your name,” AVPA says. “Methods such as facial estimation and verification methods processed entirely on a user’s device (e.g. their smartphone or computer) neither capture nor share a user’s name at any stage.”
The settlement requires whatever process Meta chooses to undergo annual testing to ensure it is working as intended. It sets a maximum false positive rate of 5% for minors ages 13 to 15 and 10% for minors aged 16 to 17.
Nick Krosse, director of technology and innovation policy at American Action Forum, said those standards make it more likely Meta will opt for an age verification method that requires the user to provide a photo ID or other personally identifiable information over tools that analyze photos or behavior to estimate a user’s age.
“If I were Meta or any other potential company who might sort of settle on similar terms in the future, I obviously would not want to be on the wrong side of those error rates,” he said. “And that might push me toward adopting a more strict method for verification — not necessarily because it’s the best or the least privacy intrusive or anything like that, but because it reduces my liability.”
Personally identifiable information is a target for hackers. And although platforms may promise to delete data within a certain amount of time, that is not always the case, Mr. Krosse said.
He cited as an example an online forum called Tea, where women could anonymously post warnings about men. The company had users upload a selfie and a government ID to prove their gender, promising it would quickly be deleted.
“Turns out they hadn’t done that. They left it sort of open in this server that was easily hacked into later,” he said, noting some of the women were ultimately doxed.
Mr. Perrino said he does not see how Meta could get away with deleting any age verification data it collects, because it would be needed for enforcement of the settlement.
“If the government comes after you for allowing a minor user to access certain information, pretty much the only way you can prove that you didn’t allow for that was to show that you did age verification on them,” he said.
Mr. Perrino worried about creating “honeypots of sensitive information” for hackers to access and establishing “the tools for tyranny.”
Having to show an ID or reveal other personally identifiable information to access information or communicate with people online can have a chilling effect and lead to government censorship, he said. The latter is of particular concern in countries with authoritarian leaders who are looking to crack down on dissent and criticism of the government.
“We’re going to be surveilled online, and we’re going to be surveilled on the streets by these Flock cameras,” Mr. Perrino said. “It’s like there’s no place you can go in America anymore to speak and associate and communicate with one another privately without having the government track you or, or in this case, show your papers.”
Reclaim the Net, a website that advocates for online freedom, posted an article detailing concerning provisions of the Meta settlement, including “a wild clause in which both sides waive any right to argue that any of it is unconstitutional.”
Coauthors Dan Frieth and Cindy Harper said that provision is particularly egregious given state laws attempting to implement similar restrictions on minors’ social media use that the courts have blocked on First Amendment grounds, including Virginia’s one-hour limit for users under age 16.
“It’s the same policy, but this time negotiated rather than tested in court, means there is no plaintiff and therefore no judicial scrutiny,” they said.
Mr. Krosse said many states have wanted to adopt age verification and the settlement is a way for them to get it “without a sort of pathway for anyone to be able to challenge it in the same way that they’d be able to challenge it if it were a statute or a regulation.”
Meta has resisted state and federal legislative efforts to force social media platforms to change design settings for minors without third-party age verification. The company lobbied Congress to pass a bill called the App Store Accountability Act, which would mandate age verification at the app store level, putting the onus on Apple and Google.
The bill stalled amid concerns about the privacy implications, even as other bills attempting to protect kids online have advanced.
Mr. Frieth’s and Ms. Harper’s article highlights other aspects of the Meta settlement that threaten privacy, such as a provision requiring at least 90% of reports of potentially harmful content to be decided within six hours.
“Given the volume of reports the company receives, this is a clear nod to the use of automation to make these decisions, and that usually means over-removal of speech,” they said.
The settlement also requires parents to be notified every time their child first communicates with an adult, with a link to the adult’s profile.
“Third parties are identified to strangers without their consent, and the alerts land hardest on the very teens for whom home is the danger, the ones quietly looking for help who are outed to a parent by an automated notification,” Mr. Frieth and Ms. Harper said.
Their article concluded: “Users are on the brink of being identified, classified, and monitored on a scale no legislature would have survived voting for.”
Mr. Perrino said policymakers should err on the side of freedom, allowing individuals to opt into the types of restrictions the Meta settlement attempts to mandate.
“I’m not dismissing the idea that there might be potential harms to kids using social media, but I’d say that the greater harm is always having the government restrict First Amendment rights, invade our privacy and create the tools for tyranny down the road,” he said.
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