Proposed legislation aimed at protecting minors online cannot survive strict scrutiny analysis.
Despite a plethora of tools offered to parents at every level in the mobile internet ecosystem to keep kids safe online, there are policymakers on both sides of the aisle who believe that additional, aggressive government intervention is necessary.
Take, for example, the proposed App Store Accountability Act, which the U.S. House of Representatives Committee on Energy and Commerce recently marked up and forwarded to the full House of Representatives for consideration.
The App Store Accountability Act would aim to bolster parental oversight of minors’ app usage by mandating robust age verification and consent mechanisms by major app stores—in particular, the Apple app store on iOS devices and Google Play on Android devices. Rather than hold each app responsible for verifying the age of their respective customers, this legislation would have the federal government shift the burden—and by extension, full liability for the actions of third parties over which they have no control—onto app stores.
Such an expansive government intervention in the market raises a host of issues that should give policymakers pause.
First, it is simply not appropriate for the government to impose liability on a private party for the actions of another entity over which it has no control. Each firm must be responsible for its own conduct—even when it comes to age verification.
This liability could be substantial. For example, assume that the App Store Accountability Act is enacted into law and that an app store takes all reasonable steps to guard the personal information it collected to verify the age of each user, but those data are hacked nonetheless —there is, unfortunately, no shortage of bad actors. That app store could now be subject to a tsunami of lawsuits for a service it had no desire to provide in the first instance.
Worse, requiring app stores to assume this responsibility for the entire mobile internet ecosystem would essentially convert them into de facto public utilities. The App Store Accountability Act mandates a plethora of obligations with which an app store must comply, including what personal data that the app store must collect from its retail users, how it must protect these sensitive data, and how it must provide these data to third-party app developers. Compliance with these extensive mandates is not costless. The Act, however, is silent as to whether app stores may recover these compliance costs from retail users or app developers or both or whether app stores must internalize these costs. If the later scenario proves to be the case— if the U.S. government is requiring app stores to provide a service without compensation—then the App Store Accountability Act raises significant takings questions under the Fifth Amendment of the U.S. Constitution.
Second, the practical benefits of mandatory age verification by app stores may be limited. Courts have recognized that there are a multitude of participants in the ecosystem, all of which provide parental controls. Apps are a convenient way to access content, but children can also easily access inappropriate content via a web browser on their mobile phone or computer. Analytical consistency therefore requires that the government should mandate age verification across all of the other actors in the ecosystem. After all, if children must be protected from objectionable content online and they can easily bypass apps by directly surfing the web via a browser, then focusing exclusively on app stores would be an incomplete policy response.
Third, mandatory app store age verification would require government-sanctioned identification for a smartphone user to access any features beyond the most basic ones. Because app stores are an almost essential part of mobile device use, mandating age verification at the app store-level effectively would transform what should be an open communications device into a government-gated platform.
Requiring mandatory app store verification thus would have profound implications. Adults who do not have government-issued identification—including those who have lost their documents or are experiencing homelessness—would not be able to use a smartphone for anything other than the most basic services, such as calling, texting, browsing, taking photos, or setting alarms. For most purposes, the mobile device would become substantially limited in functionality—a “brick.”
A significant portion of the U.S. public would be affected under mandatory app store age verification. According to a 2024 survey, nearly 21 million Americans over 18 years old do not have a driver’s license, and 2.6 million Americans have no government-issued photo identification at all. Even adults who have identification face a consequential choice: Surrender anonymity and permanently link to their identities in every app they download, or forgo smartphone functionality. This burden is not insignificant: The device in their pocket would have little use unless they submit to a government identification mandate.
Finally, mandatory app store age verification raises significant concerns under the U.S. Constitution’s First Amendment. These concerns are no longer theoretical: Last December, a federal district court issued a preliminary injunction in Computer & Communications Industry Association v. Paxton to stay enforcement of Texas’s App Store Accountability Act—a law very similar to the proposed federal bill bearing the same name.
The district court held that the Texas law restricted “access to a vast universe of speech” and was “akin to a law that would require every bookstore to verify the age of every customer at the door and, for minors, require parental consent before the child or teen could enter and again when they try to purchase a book.” As a result, the court ruled that Texas’ effort to impose mandatory age verification on app stores violated the First Amendment.
Finding that the Texas law was a content-based restriction on speech, the district court applied a strict scrutiny test—the most demanding form of scrutiny that courts apply in constitutional cases— and concluded that Texas had failed to demonstrate that the broad statute was the “least restrictive means of achieving a compelling state interest.” In the judge’s view, the law was “so exceedingly overbroad” that it was unlikely that Texas could ever show a compelling state interest to justify its restrictions.
Even though this preliminary injunction staying enforcement of the Texas App Store Accountability Act is only the first step in what will likely be a multi-year battle, Computer & Communications Industry Association sends a clear message that federal efforts to impose mandatory age verification on app stores will also face significant constitutional hurdles. House Subcommittee Chairman Brett Guthrie (R-Ky.) has even explicitly recognized that these hurdles must be addressed if the App Store Accountability Act is to ever become law.
The federal bill is no doubt motivated by altruistic intentions, but it would create more problems than it would solve. If history is any indicator, whenever ill-formed legislation is rushed into law, the potential for unintended consequences is high. Given that a constitutional challenge to the federal App Store Accountability Act would be immediate—and likely successful—perhaps Congress’s legislative resources would be better allocated elsewhere.
Lawrence J. Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.
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