The Bipartisan Consensus to Hyper-Regulate the Internet

Like America, the internet as we know it today was conceived in liberty. Now, politicians of both parties hope to stifle it with ill-conceived (and often-unconstitutional) regulatory regimes.

Like other revolutionary technologies, the internet has wrought at-times destabilizing societal changes that worry many politicians and other public figures. To exert allegedly stabilizing state control over the digital world, many right-wing technocrats wishes to foist on online platforms permissive notions of content moderation. Many left-wing technocrats, conversely, seeks far stricter online moderation of speech by private means, informal public–private coordination, or by state fiat. Both sides wish to sanitize the internet for children – even at the cost of the general population’s privacy and data security.

Even when their ends diverge, both find general agreement in favoring some sort of heavy-handed regulatory regime for the internet. What’s more, many of these efforts contravene the Constitution and established jurisprudence – as well as prudence and the basic tenets of economics.

Congress has considered several proposals to exert sweeping control over online speech, markets, communications security, and much else, though it has yet to approve anything beyond a few targeted bills, some of which have spectacularly backfired in the exact ways proponents of internet freedom have warned. In the meantime, several states have passed internet-regulation bills, of which many require social media platforms (or, in some cases, a broader set of websites) to verify their users’ age.

Consider the following pair of fashionable regulatory formats.

Keeping Teens Off Social Media

Barring underage teens from using social media without affirmative parental consent – and consequently mandating universal age verification on social media – has in recent months gained more support – often bipartisan – than perhaps any other internet-related policy proposal. Utah codified such a law in March, and the 118th Congress has seen several such proposals introduced.

However, requiring platforms to block all underage users by default, absent parental consent, unconstitutionally restricts teens speech rights. Consider Brown v. Entertainment Merchants Association (2011), in which the Supreme Court ruled unconstitutional a California statute that forbade minors to purchase violent video games. The late Justice Antonin Scalia swatted away arguments that by-default bans support “parental rights,” as some suggest.

“While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want,” Justice Scalia wrote. Indeed, parents wield broad authority over their children, and the state may bolster it, he reasoned, yet “it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.”

Moreover, enforced age verification violates the First Amendment. To verify thoroughly the age of minors, a platform must perforce verify the age of all users. This, when required by government, infracts Americans’ right to speak anonymously, a right the Supreme Court recognized in McIntyre v. Ohio Elections Commission (1995). “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent,” Justice John Paul Stevens wrote for the majority. “Anonymity is a shield from the tyranny of the majority.” Justice Clarence Thomas examined the historical record, concluding that “the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion.”

Age-Appropriate Design Codes

In 2022, California (ever the vanguard in progressive policy campaigns) instituted a so-called “age-appropriate design code” in the aptly named Age-Appropriate Design Code Act (AADCA). Ultimately, the AADCA’s overbroad, byzantine provisions coerce platforms to enforce content-moderation practices that please progressives in Sacramento. It contains numerous provisions, entailing crushing compliance costs, but its core requirement is this:

“The law will require any business (as defined by California statute) offering online services ‘likely to be accessed by children’ to ‘[e]stimate the age of child users with a reasonable level of certainty appropriate to the risks that arise from the data management practices of the business or apply the privacy and data protections afforded to children to all consumers’ (emphasis added). In other words, if a company cannot erect obstacles for child[]users specifically, it must create obstacles for all.”

Thus, the AADCA tacitly mandates age verification for an overbroad slate of websites. The statute requires, moreover, that digital services launching new products and features to assess the potential harms underage users could experience and to mitigate them. Add thereto the introduction of many other weighty compliance burdens. Trade group NetChoice quickly challenged the AADCA’s constitutionality on myriad counts. “[S]elf-censorship is AB 2273’s self-professed aim,” NetChoice contends.

The fatal over-broadness the AADCA displays typifies too many policy makers’ approach to internet regulation. They advocate instituting sweeping regulatory regimes that would degrade greatly the quality of online speech or commerce, little appreciating the maelstrom of havoc and unintended consequences their proposals would trigger.

Amassing Troves of American Data

As the App Security Project (hosted by the Taxpayers Protection Alliance Foundation) has documented at length, mandatory age verification coerces users to dispense sensitive, personal data to inherently non-secure databases. Requiring all would-be social media users to scan a government-issued ID to create an account, for example, raises greatly the probability of hacks or other data breaches. Read more here.

Parents, Not Governments

Too many recent proposals seek to appropriate to government the rights and responsibilities of parenthood, as Justice Scalia wrote of California’s video-game ban. Lockout-by-default laws “do not enforce parental authority over children’s speech and religion” – or anything else – “they impose governmental authority, subject only to a parental veto,” to borrow from his Brown opinion.

While government surely must act on its compelling interest to protect minors, it must simultaneously protect the sphere of authority parents rightfully dominate. Simply put, the state ought not regulate away all parenting mistakes. Many parents feed their children too much unhealthy food – one fifth of children and adolescents are obese –  yet no liberty lover would advocate direct state intervention in family meal planning.

Likewise, many parents certainly should do more to monitor their children’s online habits, e.g., screening for age-inappropriate content and online predators; and limiting access time. This does not, however, justify the passage of flagrantly unconstitutional statutes that compromise the on- and off-line security of all Americans; nor the usurpation of parents’ duties as the primary protectors or their offspring.

Tech companies, moreover, continue to respond to parental concerns with ever-improving child-safety tools. While still imperfect, these tools have developed extensively in recent years. (For example, view Apple’s extensive suite of parental controls here).

America predicated her rise to greatness on robust families, thick webs of community-level institutions, and individual liberty. Politicians ought to harmonize public policy to these ideals in physical and digital spaces alike.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.