Yesterday, TechFreedom filed comments in response to the National Telecommunications and Information Administration’s (NTIA) Request for Comment (RFC) on their initiative to protect youth mental health, safety, and privacy online. As written, the Notice makes several fundamental assumptions and assertions that potentially doom this exercise at the outset.

“Gone are the guardrails that Congress erected around COPPA,” said James Dunstan, General Counsel of TechFreedom. “Instead, the Notice puts forth an assumption that the same rules should apply to all persons under 18 years of age—obliterating the underpinnings of COPPA. COPPA has survived without a constitutional challenge precisely because Congress made a clear distinction between the needs of young children—those under 13—and the rights of older minors and adults. The notice also assumes all harms which might befall a minor on the Internet are of equal concern, requiring a similar solution, and that advertising to minors is inherently evil. None of these concepts are currently supported by the existing statutory framework that protects children.”

“The Notice fails to address the very real First Amendment issues inherent in regulating speech on the Internet,” Dunstan continued. “Rather than cordoning off speech such as CSAM—which is afforded no First Amendment protections—the Notice sweeps together non-protected speech and the most highly protected speech, and suggests that the Administration can act equally to regulate all types of speech on the Internet. The Notice also references age-verification as one tool that might assist in protecting minors online. Mandating age verification is unconstitutional, as it would still violate the First Amendment rights of adults to anonymously access lawful, constitutionally protected content online.”

“The notice ignores limitations of the administrative branch following West Virginia v. EPA,” Dunstan concluded. “The Executive Branch is not free to move forward as it sees fit absent congressional authorization. On major questions, the Supreme Court has increasingly signaled that it will no longer defer to agency interpretations of ambiguous statutory language—or here, a complete lack of congressional legislation—as the basis for broad claims of authority. As a matter of statutory interpretation, courts expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”


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About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology. Image via Flickr