A new bill, the App Store Accountability Act, puts the onus of age verification on app stores as a means of promoting online safety for children. According to proponent Senator Lee, “for too long, Big Tech has profited from app stores through which children in America and across the world access violent and sexual material while risking contact from online predators. Our legislation brings age verification and accountability to the source of the problem.” Co-proponent Congressman James contends that “kids cannot consent—and any company that exposes them to addictive or adult material should be held accountable” and that the proposed Act “holds Big Tech companies to the same standard as local corner stores.”
Unlike Australia’s Online Safety Amendment (Social Media Minimum Age) Act 2024, which makes it illegal for specific social media platforms to have accounts with individuals under 16 (but exempts a range of other applications such as messaging services, online games and services “supporting the health and education of end-users”), the proposed US solution does not hold application providers deemed to be causing harm responsible for age verification of users. Rather, it places the onus on the app stores through which individuals obtain the software used to interact with application operators. The app stores will be required to determine a user’s age category (older or younger than 18) and obtain parental or guardian permission to transact with minors before downloading app software to any smartphone (though how software downloads for the same apps to personal computers will be managed, which can be made directly from a website, remains unclear). They will also be required to share the age category data with application developers, and together, they will be held accountable for providing accurate age ratings for all apps supplied.
The bill’s proponents assert the role of parental responsibility in governing what children can or cannot access online. This goes a long way to addressing criticisms of Australia’s Act, which has been accused of government overreach in assuming the parental task and targeting specific applications’ content while exempting others (e.g. messaging apps and games), which are equally likely to harm children. Importantly, the US bill enables individuals under 18 to use sites when they have parental permission. Denying access to all Australians under 16 has rightly been identified as a breach of the human right to free speech—this must also be considered in similar legislation now proposed for New Zealand.
But while the US legislation may be better than its Australian comparator, the question still remains of whether it is appropriate to make the app stores the policemen enforcing underage use of internet applications. Analogies have been drawn to controls on retailers selling tobacco products to protect the interests of minors who may not be in a position to make informed purchases, or to cinema operators who use age-based rules to prevent individuals from seeing movies with age-inappropriate content. However, these analogies are flawed for multiple reasons.
First, tobacco products are harmful to all users, so sale to minors is harmful with or without parental consent. This is not the case for online applications. Harm is highly contingent on the context: Content or applications harmful to some users are not harmful to others, regardless of age; and the capacity of the user to interpret and use the app and its content intelligently affect whether the use is or will be harmful.
Second, each sale of tobacco products or visit to an age-restricted movie—analogous to each visit to an age-restricted site—is subject to age-verification. The bill proposes that age verification will occur only at the time the app is initially downloaded. It places no checks on subsequent use of the app—whether benign or harmful. Even when parental permission is granted, there are no guarantees that the minor will not be subject to subsequent harm since parental permission is not required for each use. This would be equivalent to a movie theatre gaining once-only permission to admit a minor into screenings of any age-restricted movies in the future, regardless of the content or context of the individual movies and without further confirmation of parental consent. The difference here is that the parents—not the app store/application provider or movie theatre operator/movie distributor—will be accountable if any harm occurs to the young person.
It begs the question of whether the bill addresses monitoring of minors’ exposure to apps and harmful content or incentivizing and enforcing parental consent to their placing an order but turning a blind eye to what occurs at or after delivery.
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