House Committee Approves Online Safety Bill With Federal Av Requirement

As XBIZ reported earlier this week, The KIDS Act is an omnibus bill combining a suite of online safety bills. While much attention has been focused on the Kids Online Safety Act, and especially on the softening of language that would have assigned a “duty of care” to social media platforms, the KIDS Act also incorporates an updated version of the Shielding Children’s Retinas from Egregious Exposure on the Net (SCREEN) Act, which would impose nationwide age verification requirements for adult sites.

Title I of the KIDS Act, labeled “Shielding Minors From Obscenity,” mandates that adult sites must implement a ‘‘technology verification measure,’’ defined as “technology that (A) employs a system or process to determine whether it is more likely than not that a user of a covered platform is a minor; and (B) prevents access by minors to any sexual material harmful to minors on a covered platform.”

In order to comply, sites or their third-party AV providers must not only use such a “technology verification measure” to verify the age of a user, but also take “reasonable measures” to address circumvention of technology verification measures — a provision apparently aimed at countering the widespread use of virtual private networks (VPNs) to avoid age verification requirements.

Failure to comply with the proposed law would be treated as a violation of the Federal Trade Commission Act’s prohibition against unfair or deceptive acts or practices. Violators would therefore be subject to civil penalties of up to $10,000 for each violation.

Industry Legal Perspectives

About half of all U.S. states currently have AV laws on the books. If the KIDS Act becomes law, its AV provisions will supersede those state laws.

Industry attorney Corey Silverstein told XBIZ that while he views any form of age verification as an outright violation of the First Amendment and a clear prior restraint on free speech, he does believe that a single federal law would be preferable to dozens of state laws.

“The various state-level AV laws have created absolute havoc throughout the industry, containing small differences that make compliance a nightmare for service providers,” he said.

Silverstein expressed concern, however, that while the KIDS Act’s AV provisions would generally preempt state AV laws, it specifies that it would not preempt laws with respect to trespass, contract, tort, product liability or consumer protection, or laws that include criminal penalties.

“This would still leave the door open to individual states to pursue criminal charges and the filing of private lawsuits,” Silverstein cautioned. “Additionally, an overly aggressive attorney general could still attempt to pursue an adult platform under the guise of ‘general consumer protection,’ although I believe that such an attempt would have considerable obstacles to overcome.”

Industry attorney Lawrence Walters told XBIZ that the age verification mandate in the KIDS Act appears “more forgiving” than most state AV laws.

“The state laws typically require that the platform verify the user is not a minor,” Walters noted. “The KIDS Act requires that the covered platform determine whether it is ‘more likely than not’ that the user is a minor.”

Which specific verification methods will be deemed acceptable for complying with the legislation, Walters added, will presumably be clarified through guidance or rules issued by the Federal Trade Commission.

Walters also noted another potential complication of instituting a federal AV standard.

“These obligations would kick in one year after passage of the KIDS Act,” he said. “Given federal preemption, this could create an environment where the state AV laws are unenforceable for a year until the federal standard becomes effective.” 

The bill will next be taken up by the House Judiciary Committee. If passed and signed into law by President Trump, the KIDS Act would take effect one year after enactment.