The landmark settlement that state attorneys general secured against Meta will require more robust age-verification methods, alarming First Amendment advocates who worry it will intrude on users’ privacy and lead to dangerous crackdowns on free speech.
Meta agreed to pay states up to $17.1 billion, more strongly enforce its ban on children younger than 13 accessing Instagram and Facebook and limit youths ages 13 to 17 to two hours per day on the platforms, with additional nighttime and school-hour restrictions.
The settlement includes an additional $5 billion, contingent on the states reaching comparable settlements with Meta’s main competitors, Snap, TikTok and YouTube.
To enforce the usage restrictions, the settlement requires Meta to implement “enhanced age-assurance measures” for both new and existing users of Instagram and Facebook. Adults who decline to participate in the age-verification process would be subject to the default protections required for teenage users.
“I see this latest Meta settlement as a backdoor effort to mandate age verification without doing it through [state] legislatures or the federal government, where there’s been gridlock for years on that question, in large part due to the First Amendment and privacy concerns that it raises,” Nico Perrino, executive vice president of the Foundation for Individual Rights and Expression, told The Washington Times.
The settlement does not prescribe the exact age-verification process Meta must use, allowing the company to choose between existing commercially available tools and the development of its own proprietary methodology.
The Age Verification Providers Association, a trade group for companies that provide commercial age-assurance technology, argues that independent providers should conduct age checks for platforms that need them and return only a yes-or-no answer to questions such as whether the user is 18 or older.
“Adults can continue to browse, read and speak anonymously after an age check, just as showing ID at a nightclub door does not mean the bartender records every drink you order against your name,” the association says. “Methods such as facial estimation and verification methods processed entirely on a user’s device (e.g., their smartphone or computer) neither capture nor share a user’s name at any stage.”
The settlement requires that Meta undergo annual testing to ensure it is working as intended. It sets a maximum false-positive rate of 5% for minors ages 13 to 15 and 10% for minors ages 16 to 17.
Nick Krosse, director of technology and innovation policy at American Action Forum, said those standards make it more likely Meta will opt for an age-verification method that requires users to provide a photo ID or other personally identifiable information rather than tools that analyze photos or behavior to estimate a user’s age.
“If I were Meta or any other potential company who might sort of settle on similar terms in the future, I obviously would not want to be on the wrong side of those error rates,” he said. “And that might push me toward adopting a more strict method for verification — not necessarily because it’s the best or the least privacy intrusive or anything like that, but because it reduces my liability.”
Personally identifiable information is a target for hackers. Although platforms may promise to delete data within a certain time frame, that is not always the case, Mr. Krosse said.
As an example, he cited a dating safety app called Tea, where women could anonymously post warnings about men. The company required each user to upload a selfie and a government ID to verify their gender, promising to delete the IDs quickly.
“Turns out they hadn’t done that. They left it sort of open in this server that was easily hacked into later,” he said, noting that some of the women were ultimately doxed.
Mr. Perrino said he does not see how Meta could get away with deleting any age-verification data it collects, because that data would be needed to enforce the settlement.
“If the government comes after you for allowing a minor user to access certain information, pretty much the only way you can prove that you didn’t allow for that was to show that you did age verification on them,” he said.
Mr. Perrino worried about creating “honeypots of sensitive information” for hackers to access and establishing “the tools for tyranny.”
Having to show an ID or reveal other personally identifiable information to access information or communicate with people online can have a chilling effect and lead to government censorship, he said. The latter is of particular concern in countries with authoritarian leaders seeking to crack down on dissent.
“We’re going to be surveilled online, and we’re going to be surveilled on the streets by these Flock cameras,” Mr. Perrino said. “It’s like there’s no place you can go in America anymore to speak and associate and communicate with one another privately without having the government track you or, or in this case, show your papers.”
Reclaim the Net, a website that advocates for online freedom, posted an article detailing concerning provisions of the Meta settlement, including “a wild clause in which both sides waive any right to argue that any of it is unconstitutional.”
Co-authors Dan Frieth and Cindy Harper said the provision is particularly egregious, given state laws attempting to implement similar restrictions on minors’ social media use that courts have blocked on First Amendment grounds, including Virginia’s one-hour limit for users younger than 16.
“It’s the same policy, but this time negotiated rather than tested in court, means there is no plaintiff and therefore no judicial scrutiny,” they said.
Mr. Krosse said many states have wanted to adopt age verification, and the settlement is a way for them to get it “without a sort of pathway for anyone to be able to challenge it in the same way that they’d be able to challenge it if it were a statute or a regulation.”
Meta has resisted state and federal legislative efforts to force social media platforms to change design settings for minors without third-party age verification. The company lobbied Congress to pass the App Store Accountability Act, which would mandate age verification at the app store level, putting the onus on Apple and Google.
The bill stalled amid concerns about privacy implications, even as other bills aimed at protecting children online have advanced.
Mr. Frieth and Ms. Harper’s article highlights other aspects of the Meta settlement that threaten privacy, such as a provision requiring that at least 90% of reports of potentially harmful content be decided within six hours.
“Given the volume of reports the company receives, this is a clear nod to the use of automation to make these decisions, and that usually means over-removal of speech,” they said.
The settlement also requires parents to be notified every time their child first communicates with an adult, with a link to the adult’s profile.
“Third parties are identified to strangers without their consent, and the alerts land hardest on the very teens for whom home is the danger, the ones quietly looking for help who are outed to a parent by an automated notification,” Mr. Frieth and Ms. Harper said.
Their article concluded: “Users are on the brink of being identified, classified, and monitored on a scale no legislature would have survived voting for.”
Mr. Perrino said policymakers should err on the side of freedom, allowing individuals to opt into the types of restrictions the Meta settlement attempts to mandate.
“I’m not dismissing the idea that there might be potential harms to kids using social media, but I’d say that the greater harm is always having the government restrict First Amendment rights, invade our privacy and create the tools for tyranny down the road,” he said.
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