We’ve all heard of the Nanny State, when government stops representing the people and tries to parent them. While there have been many attempts over the years for states to take over the parenting role of children, all with good intentions, of course, they never seem to learn that when the state tries to act as the parent it generally fails.
Age Verification
There have always been things that were allowed for adults, but harmful to children. I remember when the Motion Picture Association (MPA) rating system for movies was enforced; a theater would prevent me from watching a PG rated movie without my parents or their written permission. Granted that was long ago, and it didn’t take very long for people to find ways around the restrictions. Today, the MPA rating system, along with the TV Parental Guides, are little more than suggestions in most cases, and enticements in others. All along the way, government actors have tried to help parents protect their children from the more offensive content readily available. However, In today’s digital world, things went from merely difficult to seemingly impossible. Enter the idea of digital age verification.
Age verification is nothing new. As long as there have been laws prohibiting selling alcohol to minors, there has a booming business in fake IDs. As long as there have been laws requiring the hiding of pornography, there have been minors who gained access then shared with others. With the internet, most people think it’s all but impossible for parents to protect their children from this content, at least without government’s help. And when it comes to laws meddling in other people’s lives, government is more than willing to help.
While many states and even the federal government have come up with digital age verification laws, they all seem to forget two important facts. There will always be those who find ways around the restrictions, and unless that parents are involved nothing the government can do will actually protect the children.
As an example, let’s look at Wisconsin’s proposed legislation, AB105.
(2) Age verification required to publish or distribute material harmful to minors.
(a) No business entity may knowingly and intentionally publish or distribute material harmful to minors on the Internet from a website that contains a substantial portion of such material, unless the business entity performs reasonable age verification methods to verify the age of individuals attempting to access the website.
Wisconsin AB 105
Sounds simple enough: Age verification is required for a business entity to knowingly publish or distribute content considered harmful to minors. As so often is the case though, the devil is in the details. This bill, should it become law, is only effective within the state of Wisconsin. It has no legal authority over businesses in other states or countries.
Also, just what are “reasonable age verification methods”?
(i) “Reasonable age verification method” means verification by a business entity using any of the following methods to determine that an individual seeking access to material harmful to minors is not a minor:
Wisconsin AB 105
- A commercial age verification system that verifies age using the individual’s government-issued identification card or by using any commercially reasonable method that uses public or private transactional data gathered about the individual.
- A government-issued digitized identification card.
So for a business in Wisconsin to use reasonable age verification, they would either have to get a digital version of your identification card, or purchase a service that uses other data to verify your age. But what about your data? Unlike showing your ID at a liquor store, an online entity has the copy of your information you submitted for verification. What happens to that data?
(b) A person that performs a reasonable age verification method in compliance with par.
(a) may not knowingly retain identifying information of the individual attempting to access the website after the individual’s access has been granted or denied.
Wisconsin AB 105
So these business are not supposed to keep the data, but do we really expect businesses to follow this? After all, what if the State of Wisconsin wants to audit the business’s records to insure compliance with this law? How can a business prove that the user’s ID showed they were not a minor without a copy of the ID? A commercial product may provide a verification code, but how does the state know that the code is legitimate if the provider doesn’t have a copy of the ID to prove it? So subsection 2(b) would make it impossible for a business to defend itself against a claim of violating this law.
Speaking of violations, they would be civil, not criminal.
(4) Civil liability.
(a) A person alleging a violation of sub. (2) or (3) may bring an action seeking actual and punitive damages, court costs, and reasonable attorney fees notwithstanding s. 814.04 (1). A person bringing an action under this paragraph is not required to first exhaust any relevant administrative remedies.
Wisconsin AB 105
So who gets to sue? I can understand a parent suing if their child gained access to such a site, but is that all? What about a grandparent, uncle, aunt, or cousin? Could a teacher or neighbor sue? Because that is not stated in the legislation.
There are exceptions to this restriction.
(5) Exemptions.
(a) Subsection (2) does not apply to any bona fide news or public interest broadcast, video, report, or event, and may not be construed to affect the rights of any news-gathering organization employee.
Wisconsin AB 105
Who defines what is “bona fide” news or public interest story? If someone is writing a news story of the sexual antics of a politician, would that be exempt? And just why is the news-gathering exception limited to employees of “news-gathering organizations”?
(e) “News-gathering organization employee” means any of the following:
Wisconsin AB 105
- An employee of a print, online, or mobile platform newspaper, news publication, or news source that provides current news and public interest information, if the employee is acting in his or her capacity as an employee of the newspaper, news publication, or news source.
- An employee of a radio broadcast station, television broadcast station, cable television operator, or wire service, if the employee is acting in his or her capacity as an employee of the radio broadcast station, television broadcast station, cable television operator, or wire service.
Today more and more news is gathered not by these organizations, but by private and freelance individuals. Why are they not exempt? Is the State of Wisconsin attempting to infringe on freedom of the press by limiting it to certain organization?
Virtual Private Networks
There is a twist to this legislation I haven’t seen before: A ban on the use of Virtual Private Networks, or VPNs.
(c) A business entity that knowingly and intentionally publishes or distributes material harmful to minors on the Internet from a website that contains a substantial portion of such material shall prevent persons from accessing the website from an internet protocol address or internet protocol address range that is linked to or known to be a virtual private network system or virtual private network provider.
Wisconsin AB 105
For those of you who don’t know how VPNs work, let me explain. Every device that connects to the internet has an Internet Protocol (IP) address. These addresses are allocated to your Internet Service Provider (ISP) in blocks, and the ISP maintains a database of the physical location of their equipment with these addresses. That’s how your Netflix, Amazon Prime, and other services like weather apps know where you are to provide the correct services. One way around these limitation is to use a VPN. VPNs work by encrypting your internet traffic, sending it to a server somewhere on the internet, which then places your traffic on the internet from there. This allows traffic from your home to appear as if it’s coming from another city, state, or country.
Wisconsin wants these businesses to block access from known VPN providers. This not only blocks people who would otherwise be able to legally access this content, but ignores the fact that VPN providers add new networks as their systems grow. Who is going to maintain a database of VPN providers that the state will recognize?
Will This be Effective?
I applaud the idea of keeping our children safe from things that are harmful for them. I just think that Wisconsin, like so many other governments, have missed two very important points. First, they are not our parents. Can they provide tools to assist parents in these endeavors? In many cases, yes. When they try to replace parents though, they fail miserably.
When my daughter was young, I worked very hard to protect her from harm, both physical and digital. She did not have a cellphone until she was 16 years old, and that was flip phone with no internet access. She did have internet access at home, but it was heavily filtered to protect her from harmful content. Did this make things difficult, especially for my wife? Yes, but it was worth it because we were our daughter’s parents not her friends.
Second, no matter what rules, regulations, or legislation states put in place, they won’t work unless the parents take their role seriously. If a parent doesn’t care what content their child sees online, nothing the state does can substitute for the parent. There have already been reports of parents providing age verification, using VPNs, and other techniques for their children to access content the state doesn’t think they should see.
Conclusion
I applaud the idea of trying to protect children. I just wish people spent as much time looking at the effectiveness of what they are trying as they did promoting it. Though people claim “It’s for the children!” they rarely check to see if it actually helps those children. Governments finding legal ways to help parents protect their children is a good thing, while replacing those parents is evil.
What the State of Wisconsin seems to have forgotten is that their laws mean nothing outside of their borders. Even this legislation is limited to businesses. Put those together and the only logical impact would be for businesses to leave the state if they feared that one day the State of Wisconsin might find a substantial portion of their content was harmful to minors. With our recent experience with governments attempting to regulate “misinformation,” that would not be an unwarranted fear for most content providers.
I believe the Wisconsin legislators who sponsored this bill have good intentions, but I think they forgot what road is paved with good intentions.
