Challenges with Identifying Minors Online

Challenges with Identifying Minors Online

INSIGHTi

Challenges with Identifying Minors Online
Updated March 23, 2023
Congress has enacted legislation to protect minors online. For example, Congress enacted the Children’s
Online Privacy Protection Act of 1998 (COPPA). COPPA requires operators of online services that collect
personal information and are directed to, or knowingly collect, data on children under 13 years of age to
notify users about the data collection, receive parental consent, and maintain “reasonable procedures” to
protect that data. Congress has also enacted legislation—such as the Child Online Protection Act—that
federal courts have deemed unconstitutional under the First Amendment.
Policymakers have shown interest in implementing additional protections for children on the internet. The
Senate Judiciary Committee held a hearing, Protecting Our Children Online, on February 17, 2023. The
117th Congress introduced multiple bills—such as the Kids Online Safety Act and the Children and Teens’
Online Privacy Protection Act—that would have created additional requirements for operators of online
services. Some states have implemented legislation related to protecting children online, including
California’s Age-Appropriate Design Code Act and Louisiana’s liability for publishers and distributors of
material harmful to minors.
Current Efforts to Identify Minors
Federal statutes do not require providers of online services to use a specific method of age verification.
Thus, some providers of online services have minimum age requirements—typically stated in the terms of
service—and require users to enter their birthdate or age before accessing the content.
Some providers of online services have set or are exploring additional requirements to verify their users’
ages. For example, the dating app Tinder requires users in some locations to submit a copy of their
driver’s license, passport, or health insurance card to verify their age; it does not allow verification with a
resident card, temporary driver’s license, or student identification (ID) card. In June 2022, the social
media platform Instagram started to test three options for users to verify their age. Users can (1) record
videos of themselves, which are shared with Yoti, a company that operates an age-checking artificial
intelligence (AI) technology; (2) ask other users to confirm their age; or (3) upload a driver’s license or
other form of ID. In February 2021, pornographic content platform Pornhub announced that only users
verified with Yoti would be able to upload content. In January 2023, Pornhub started requiring users in
Louisiana to verify their age with the LA Wallet app—a digital wallet that allows users to upload their
driver’s license, in addition to other information.
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Potential Challenges with Identifying Minors
Providers of online services may face different challenges using photo ID to verify users’ ages, depending
on the type of ID used. For example, requiring a government-issued ID might not be feasible for certain
age groups, such as those younger than 13. In 2020, approximately 25% and 68% of individuals who
were ages 16 and 19, respectively, had a driver’s license. This suggests that most 16 year olds would not
be able to use an online platform that required a driver’s license. Other forms of photo ID, such as student
IDs, could expand age verification options. However, it may be easier to falsify a student ID than a
driver’s license. Schools do not have a uniform ID system, and there were 128,961 public and private
schools—including prekindergarten through high school—during the 2019-2020 school year, suggesting
there could be various forms of IDs that could make it difficult to determine which ones are fake.
Another option could be creating a national digital ID for all individuals that includes age. Multiple states
are exploring digital IDs for individuals. Some firms are using blockchain technologies to identify users,
such as for digital wallets and for individuals’ health credentials. However, a uniform national digital ID
system does not exist in the United States. Creating such a system could raise privacy and security
concerns, and policymakers would need to determine who would be responsible for creating and
maintaining the system, and verifying the information on it—responsibilities currently reserved to the
states.
Several online service providers are relying on AI to identify users’ ages, such as the services offered by
Yoti, prompting firms to offer AI age verification services. For example, Intellicheck uses facial biometric
data to validate an ID by matching it to the individual. However, AI technologies have raised concerns
about potential biases and a lack of transparency. For example, the accuracy of facial analysis software
can depend on the individual’s gender, skin color, and other factors. Some have also questioned the ability
of AI software to distinguish between small differences in age, particularly when individuals can use
make-up and props to appear older.
Companies can also rely on data obtained directly from users or from other sources, such as data brokers.
For example, a company could check a mobile phone’s registration information or analyze information on
the user’s social media account. However, this could heighten data privacy concerns regarding online
consumer data collection.
Policy Considerations for Congress
As Members of Congress consider implementing protections for minors, they may wish to consider
potential unintended consequences. Depending on the requirements of the legislation and severity of the
penalties, statutes may create different incentives for companies, such as collecting more data on users;
limiting availability of certain content for all users; and limiting users who are able to access their
platforms, including individuals who are not minors. Legislation that results in providers restricting
access to content on their platforms may be subject to constitutional challenges in court under the Free
Speech Clause of the First Amendment. State laws and public scrutiny about harms to minors may
incentivize providers of online services to implement changes, regardless of congressional action.
However, without federal legislation, providers may only implement changes for states that have passed
laws without regard for the concerns of Congress.

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Author Information

Clare Y. Cho

Analyst in Industrial Organization and Business

Disclaimer
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