Thorny Issue With Age-Verification Laws

Stephen Yagielowicz

Recent changes to federal online age verification legislation is spurring marketers of adult oriented materials to take a new look at the ongoing problems and the questionable solutions to this hot-button issue — and at how one problem so readily begets another...

In “Age Verification as a Shield for Minors on the Internet: A Quixotic Search?” author Francoise Gilbert examined the various issues raised by underage Internet usage, such as cyber bullying, encounters with child predators and exposure to adult materials; along with the operational challenges that are faced when attempting to shield our youth from the darker aspects of cyberspace today.

Protecting children from exposure to age-inappropriate material on the Internet is a concern that is not limited to the U.S., however, with other nations, such as the U.K. also seeking a solution to the problem.

“One way to protect minors is to ensure that their age and identity is verified,” Gilbert explains. “However, this is not technically feasible without infringing on the privacy of these children, as well as that of the adults who might have to be screened as well, if only to prove that there are not minors.”

After analyzing the problems, existing laws, and developments in other countries, as well as the legal and technical hurdles, Gilbert identifies the vital importance of parents, guardians and educators in the equation.

“While legislators are playing whack-a-mole, chasing child pornography, child predators, and cyber bullying, parents cannot let their children venture on the Internet unprepared and unsupervised,” Gilbert concludes. “Despite its friendly face and its very approachable demeanor, the Internet is not a nanny. Rather, it is a reflection of the world, a combination of the good, the bad and the ugly.”

It is a practical attitude that reflects a common sentiment among adult entertainment content promoters: parents must take the lead when it comes to protecting their children — but that doesn’t mean the industry has abandoned its obligations.

The Association of Sites Advocating Child Protection (ASACP) has taken the lead in this regard with the development of the Restricted To Adults (RTA) website meta label — an initiative that the association undertook with the support of the adult entertainment industry in response to U.S. Congressional demands that “something be done” about kids accessing Internet porn.

The RTA label (www.rtalabel.org) is a free self-regulatory tool voluntarily employed by adult oriented websites to work in conjunction with Internet filtering software used by concerned parents, educators and other stakeholders. While RTA signals that a website contains age-inappropriate material and should be blocked from display it does not verify the age of the visitor.

Although systems such as BirthDateVerifier.com have been used by some adult sites, any mechanism that relies on a user-selectable birth date is vulnerable to fraud by older (but still not old enough) children bent on deception, though it will keep out younger tots.

Truly ascertaining a website visitor’s age, requires positively identifying that visitor; so part of the problem of developing more individualized (and accurate) mechanisms for online age verification, as Gilbert states, is the issue of privacy — a sensitive issue which the Federal Trade Commission addresses in its finalized Children’s Online Privacy Protection Rule, which is effective on July 1, 2013, bringing the issue of online age verification back to the forefront.

The COPPA Rule, as it is known, is the latest in a line of legislation bearing similar acronyms — but rather than being a source of concern for many adult website operators, this ruling targets sites that are “directed to children,” which legitimate adult sites are not — of course, questions of compliance should be addressed to your attorney.

According to the commission, it amended the rule to clarify its scope and strengthen its protections for children’s personal information, in light of technological changes since it went into effect in 2000. The final rule also modifies existing definitions of “operator,” “personal information,” and “website or online service directed to children,” and updates the requirements set forth in the notice; parental consent; confidentiality and security; and safe harbor provisions; while adding a provision addressing data retention and deletion.

“Of course such a regime is vulnerable to manipulation by bad actors, but that is the inevitable result of age-based regulation of online activity,” Emma Llansó wrote for the Center for Democracy & Technology. “Requiring operators to divine the age of their users and treat different ages differently creates the opportunity for loopholes and the incentive to exploit them.”

Llansó warns that operators in uncertain gray areas may be likely to implement age-screening mechanisms out of an abundance of caution.

“This could lead to many more sites demanding age or date-of-birth information from all users prior to allowing access to their sites, leading to the perverse result of encouraging operators to collect more data about users in order to protect user privacy,” Llansó explains.

In other words, proof of age is problematic when coupled with proof of identity.

“While this new rule is not a clear-cut age verification mandate, as COPA was,” Llansó notes, “we’re concerned that the Commission is treading into very murky waters.”

Protecting children from exposure to age-inappropriate material on the Internet is a concern that is not limited to the U.S., however, with other nations, such as the U.K. also seeking a solution to the problem.

“We already successfully regulate British TV channels, cinema screens, high street hoardings and newsagent shelves to stop children seeing inappropriate images, and mobile phone companies are able to restrict access to adult material, so why should the Internet be any different?” Tory MP Claire Perry asked of the House of Commons. “British Internet Service Providers should share the responsibility to keep our children safe so I am calling for ISPs to offer an ‘Opt In’ system that uses age verification to access pornographic material.”

Germans already visit their local post office for in-person age verification as part of a similar opt-in regimen, providing another example as to how the issue can be handled in context of access to adult oriented websites, but an implementation that is far from ideal and decidedly lacking in privacy — a situation which undoubtedly suppresses sales.

For many advocates, privacy for porn purchasers, gamblers and consumers of alcohol, as well as for the companies serving them, isn’t what is paramount; protecting children is.

“No one is compelled to sell or provide anything online, but if they choose to do so they ought to be able to do it in a way which will satisfy themselves and others that they are not regularly breaking the law and potentially harming children,” John Carr wrote for The Huffington Post. “Asking for payment via a credit card emphatically does not meet the point: MasterCard and Visa cards, plus others, are lawfully available to persons of all ages [and] neither is it sufficient to do what the gambling companies used to do, i.e. ask the would-be purchaser to tick a box to confirm they are 18 or above. Equally a company cannot simply announce that ‘By confirming this order you are also confirming that you are aged 18 or more.’”

“Unless and until companies can do it right,” Carr adds, “they should not do it at all.”


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