Yesterday, TechFreedom filed comments urging the Federal Trade Commission (FTC) to dismiss a Petition for Rulemaking filed by Center for Digital Democracy, Fairplay, and 19 other organizations that would prohibit design practices commonly used across digital media and games. Ostensibly targeted at minors, the proposed rule would make content providers either curtail their services to everyone—or implement universal age verification. Our comments explain why the proposed rule is unconstitutional, unsound, and an unwise use of the Commission’s limited resources.

“The proposed rule violates the First Amendment because it would effectively require age verification of adults,” said Berin Szóka, President of TechFreedom, noting that the rule holds providers liable regardless of whether they knew or should have known that they were serving a minor. “Age verification means forcing users to identify themselves. Congress has tried to force age verification before with the Child Online Protection Act of 1998. The courts struck down COPA for violating the First Amendment rights of adults to communicate anonymously or pseudonymously online. The proposed rule is a lot more like COPA than COPPA, the Children’s Online Privacy Protection Act of 1998, which has avoided First Amendment challenge by not trying to force verification of adults.” 

“The Petition proposes KidVid on steroids—a national nanny for the Internet far more intrusive than what was contemplated in the 1970s,” said James E. Dunstan, TechFreedom’s General Counsel. “The Petition makes many of the same dire warnings that were made then: evil advertisers are manipulating our children in unhealthy ways. The FTC took the bait back then and ramped up a rulemaking proceeding, which resulted in Congress shutting down the agency for a period and ultimately stripping it of authority to promulgate any rules related to advertising to children on television.”

“The Petition’s remedies are so broad as to outlaw virtually all computer games, and any design decision that makes a user want to stay engaged with any online platform or app,” Dunstan continued. “The desire to ban low-friction variable awards—which is just another name for random outcomes in games—would prohibit virtually every game ever created. The vast majority of popular computer games have some element of randomness in gameplay paired with variable and increasing rewards.”

“The Supreme Court has made increasingly clear that it won’t allow administrative agencies to decide the kind of major questions raised here without clear statements that Congress intended them to,” concluded Szóka. “The Petition asks the FTC to reprise the single most controversial rulemaking in its history, to force digital services and games to fundamentally change their design and business models, and to force adults to identify themselves online—all based on the vague language of Section 5’s prohibition of ‘unfair and deceptive acts and practices.’ When the FTC strays into weighing highly subjective values, it’s essentially legislating—exactly the kind of power grab the Court is increasingly likely to block under the nondelegation doctrine.”

See the FTC’s request for comment for more information.


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