Why Connecticut’s Age Verification Law Could be the Next Target for Constitutional Challenge
Last year, the right-of-center tech trade association NetChoice took a constitutional stand by challenging the California Age Appropriate Design Code (AADC) in court. But instead of heeding the warning that age verification laws may be unconstitutional, states are doubling down on their own haphazard proposals. Connecticut is the latest state to introduce legislation that imposes regulations on minor Internet users, which could put their citizens’ privacy and access to critical online resources in jeopardy.
Connecticut’s SB 3: An Act Concerning Online Privacy, Data and Safety Protections, could face a constitutional challenge as it moves towards a Senate hearing. With a likely smooth passage through the House, the bill’s controversial age verification mandates could put the privacy and safety of minors and adults at risk.
Age Verification
Among many of the obligations imposed by SB 3, section eight (effective July 1, 2024) would require social media platforms to obtain parental consent from anyone under the age of 16 before permitting account creation. The provision, seemingly inspired by a recently enacted Utah law sponsored by Republican lawmakers, is especially ripe for a First Amendment challenge.
Age verification is not a novel concept. The Supreme Court has long recognized that any such laws requiring proof of age for accessing legal expression are inconsistent with First Amendment protections. In the landmark ACLU v. Ashcroft case, The Supreme Court emphasized that such laws could discourage individuals from accessing sensitive or controversial, but legally protected, online content. Likewise, in a case that challenged California legislation seeking to prohibit the sale of violent video games to minors, the Court ruled that minors, despite their age, have a First Amendment right to access lawful speech.
Apart from the glaring constitutional issues, age verification mandates pose several drawbacks that render them poor policy choices. For SB 3, websites will have no option but to verify the age of every user to avoid accusations of “willfully disregarding” minors who use their services.
However, privacy experts, such as the National Commission on Informatics and Liberty, argue that no existing age verification solution provides reliable and sufficient verification while simultaneously safeguarding individual privacy and data.
As a result, websites have turned to collecting government-issued identification to comply with similarly enacted legislation this year. In the United Kingdom, where age verification laws like Connecticut's were first implemented, Yoti, a facial recognition software provider, has emerged as a leading player for UK-based online services. Unfortunately, these measures are especially harmful for anyone who wishes to browse anonymously. For example, Journalists, whistle-blowers, and anyone looking to participate in online discussions would be forced to disclose personal details so that services could apply appropriate settings under SB 3. What’s more, by compelling companies to collect more sensitive and personally identifying information from users, Connecticut citizens will be especially vulnerable to privacy and data breaches.
Heightened Risk To Minors
Similar to the California AADC, Connecticut SB 3 would also prohibit Internet services from processing information in a way that would create a ‘heightened risk’ or ‘any other substantial injury’ to minors. Additionally, SB 3 would prohibit websites from using ‘any system design feature to significantly increase, sustain or extend any minor’s use of such online service, product or feature.’
In recent years, many services have implemented new features to protect younger users such as limiting notifications at night, restricting messaging from advertisers, and increasing protections for content uploaded by children. Indeed, “age-appropriate design” is a principle that leading services have already embraced. For example, YouTube Kids, a parent-friendly, curated experience for younger users, implements a combination of algorithms and manual curation to show only kid-friendly videos. And in 2021, Instagram tightened their guidelines on what types of content it recommends to 13 to 18 year olds. As a result, Instagram rolled out new settings that give teens and parents more control over potentially upsetting content.
However, by imposing severe penalties on services that tailor their products and features to younger users, SB 3 not only jeopardizes the availability of alternative, kid-friendly spaces and content guidelines for minors but also discourages the development of new ones. Under Section 10 of the bill (effective July 1, 2025), websites would need to re-evaluate the products and services they offer that may put minors at risk.
Further, Section 11 (effective July 1, 2025) prohibits websites from providing such products and services unless they have completed a data protection assessment that discloses the possible dangers, leaving them open to considerable litigation. Consequently, websites may opt to forego providing child-friendly alternatives and, instead, prevent minor users from accessing their services entirely.
This course of action not only raises concerns about prior restraint, which is unconstitutional under the First Amendment, but also infringes upon the rights of minors to access legally protected speech and curtails the rights afforded to parents. Indeed, The Supreme Court has also long held that parents possess a constitutional liberty to control the upbringing of their children. Hence, substantive due process issues arise when the state interferes with a parent-child relationship. SB 3 interferes with parents’ ability to choose how their children experience the web by requiring businesses to make generalized assumptions about content-offerings, precluding parents from making those decisions themselves.
Worse, the penalty for incorrectly estimating a minor’s age outweighs any interest in preserving access to information. Laws like SB 3 only encourage websites to restrict or eliminate crucial resources for kids, particularly those from marginalized communities. This is especially problematic for young people caught in the middle of the right-wing culture wars.
For instance, LGBTQ+ teens living in conservative states may be unable to access information and resources about their sexuality or gender-affirming care; teens in need of life-saving reproductive health information may be prohibited from accessing any such information deemed age-inappropriate; and underprivileged children who rely on the Internet to supplement their educational needs may be adversely affected by age verification laws.
Worth Goals, But Unintended Consequences
Although safeguarding children online is an admirable goal, SB 3 misses the mark entirely. Instead of creating a safer online environment for minors, the bill would erect digital barriers for everyone. SB 3 will increase privacy and security risks for all users, deprive vulnerable users of access to important information, chill critical and whistle-blower content, limit the Internet for Connecticut minors, and leave Connecticut minors at a permanent disadvantage in their professional lives.
Connecticut parents and taxpayers have every reason to be outraged by their legislature’s actions, which seem to contradict their interests. Furthermore, given the similar flaws exposed in the NetChoice case, it is likely that AG William Tong will be the next AG to face an expensive legal challenge on his home turf.
Chamber of Progress (progresschamber.org) is a center-left tech industry policy coalition promoting technology’s progressive future. We work to ensure that all Americans benefit from technological leaps, and that the tech industry operates responsibly and fairly.
Our work is supported by our corporate partners, but our partners do not sit on our board of directors and do not have a vote on or veto over our positions. We do not speak for individual partner companies and remain true to our stated principles even when our partners disagree.
