The fight over how to protect children online under the First Amendment has intensified in the opening weeks of the year. Two product-liability trials recently began asking whether social-media services such as Instagram and YouTube qualify as unsafe products for minors because of allegedly defective design features. At the same time, federal and state lawmakers have introduced bills that would impose liability on app stores if they fail to verify users’ ages and obtain parental consent before minors download apps.
Debate has largely centered on who should bear responsibility for harms to children online: the app stores or the apps themselves. The more important question, though, is when liability makes sense at all.
This post examines that question through a law & economics lens, with particular attention to H.R. 6333, the Parents Over Platforms Act (POPA). Sponsored by Reps. Jake Auchincloss (D-Mass.) and Erin Houchin (R-Ind.) the bill cleared the House Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade in December and now awaits consideration by the full committee.
Parental Control or Government Default?
A law & economics framework clarifies both questions. Determining who should face liability requires identifying the lowest-cost avoider, while accounting for transaction costs. Determining when liability makes sense requires asking whether enforcement benefits exceed social costs.
Previously, when I examined these issues, I wrote:
Here, one could make a strong argument that, since app stores often already have some form of data on the date of birth that was entered by a device owner, as well as the already existing ability to offer controls to parents, they are able to offer a form of “age verification” (however imperfect) and parental consent at relatively low cost. In this light, compared to social-media companies and other applications, they do seem better positioned to help monitor and control what minors access.
On the other hand, it is still an open question whether app stores are lower-cost avoiders than users (encompassing both minors and their parents) themselves. One argument already mentioned is that app stores often already have some data on the device user’s age, as well as the capacity to allow parents to give consent. On the other hand, there could still be substantial risk of collateral censorship in requiring parental consent for every single app interaction. The status quo is that device makers already do give parents controls that let them monitor app usage at a granular level. Assuming it somehow passes constitutional review, however, [app store age verification and parental consent requirements] would switch the defaults and essentially require parental approval for every app interaction on a phone. It would therefore impede parents who would prefer to permit more liberal use of apps and purchases even if they trust their kids and prefer relatively fewer notifications.
Put simply, not every parent wants to go through the hassle of approving every single one of their minor children’s app interactions. While the transaction cost for any one instance of consent may be relatively low—particularly if implemented via some type of push notification requesting approval on one’s phone or other device—the cost isn’t zero. Depending on the volume of consent requests (which would be required even for innocuous child-friendly apps), these costs could be substantial. The result could end up restricting minors’ access to protected First Amendment speech in ways that are paternalistic, rather than parental authority-enhancing…
The default is important where there are transaction costs. Here, the default of no access would likely mean that minors are restricted from some amount of protected speech. Collateral censorship is a social cost that likely outweighs the benefits of enhancing parental control, especially if the control is beyond what parents desire to exercise in many cases.
That reasoning has already found support in court. The first federal district court to review Texas’ App Store Accountability Act found the law likely unconstitutional, emphasizing the collateral-censorship problem created by individualized parental-consent requirements:
It restricts access to a vast universe of speech by requiring Texans to prove their age before downloading a mobile app or accessing paid content within those apps and requires minors to obtain parental consent. The Act is akin to a law that would require every bookstore to verify the age of every customer at the door and, for minors, require parental consent before the child or teen could enter and again when they try to purchase a book.
Nor does the Supreme Court’s decision in Free Speech Coalition v. Paxton change the analysis. App-store age verification restricts access to all speech available in apps, not merely speech obscene to minors. As I previously noted:
The Court applied intermediate scrutiny only “[b]ecause speech that is obscene to minors is unprotected.” It stressed that only “where the speech in question is unprotected” may states impose content-based restrictions “without triggering strict scrutiny.”
It is therefore puzzling that proponents of app-store age-verification mandates continue to argue that Free Speech Coalition resolves the constitutional question. For example, Georgetown University’s Meg Leta Jones contends courts can “extend[] the logic beyond porn to commercial regulation… prohibit[ing] minors from entering commercial relationships with app platforms without parental consent….”
If the issue were that simple, the California statute in Brown v. Entertainment Merchants Association would have survived First Amendment review. That law restricted minors’ ability to purchase violent video games, partly on the theory that it reinforced parental authority. Writing for the Court, Justice Antonin Scalia rejected that claim:
Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto.
The same problem appears here. Preventing a minor from downloading even innocuous apps containing protected speech absent parental permission does not empower parents; it substitutes the government’s judgment for theirs. As Brown further observed:
[W]e note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority.
Ask the Parents, Not the Government
When I previously evaluated a federal app-store accountability proposal, I concluded the earlier bill likely violated the Constitution. I also noted:
A different law might require app stores that have actual knowledge of users’ ages to follow parents’ stated desires with respect to what content is appropriate. Such a law might, indeed, pass constitutional muster.
The Parents Over Platforms Act appears designed to do exactly that.
POPA requires “Application Distribution Providers” to ask account holders to declare their age at account creation. The provider must then generate an “Age Signal” indicating whether the user is a minor or an adult. With the user’s or parent’s permission, the app store shares only that limited signal with apps, rather than a birthdate or other sensitive personal information.
The structure matters. POPA lets apps activate safety features, restrict adult content, and block personalized advertising to minors without conducting their own age checks or collecting additional data. The bill deliberately avoids the intrusive age-verification mandates courts have rejected in social-media and app-store cases. Instead of independent verification, it relies on parental input during device setup, which the app store translates into a standardized signal apps can use.
That signal drives the rest of the framework. Parents receive tools to block minors from downloading or using particular apps. Developers must disclose whether their apps treat minors differently and must take reasonable steps to determine whether a user is a minor or an adult, including reliance on the app-store signal.
If an app includes restricted content, the developer must obtain parental consent before a minor can access it. Developers also must prevent minors from using adult-only features and may not serve behaviorally personalized advertising to minors.
The allocation of responsibility follows practical lines. Parents decide what their children may access. App stores manage device-level controls and transmit age categories. Developers implement app-specific restrictions based on that information.
The bill also limits how age data may be used or shared, shields app stores and developers from liability for good-faith compliance efforts, and authorizes the Federal Trade Commission (FTC) to enforce violations as unfair or deceptive practices. The statute preempts conflicting state laws and would take effect two years after enactment.
Parents remain the lowest-cost avoiders of harm in their children’s online activity. POPA does not replace parental authority; it enhances it by requiring app stores to ask the relevant question at setup and by ensuring the answer has practical effect across the mobile ecosystem.
Safety Without Censorship?
Protecting children online requires more than choosing between app stores and apps. The real task is identifying who can reduce harm at the lowest cost, while preserving lawful speech. First Amendment doctrine and law & economics both point in the same direction: policies should empower parents, not replace them with government-imposed defaults.
Earlier proposals tried to force age verification at the point of access. Courts rightly viewed those regimes as collateral censorship because they conditioned broad categories of protected speech on proof of age and repeated parental permission. Those rules did not enhance parental authority; they displaced it, burdening families that did not want constant oversight, while restricting minors’ access to lawful expression.
POPA takes a different approach. Instead of gatekeeping speech, it operationalizes parental choice. Parents provide age information once during device setup. App stores transmit a limited age signal. Developers then implement app-specific safeguards, including restrictions on adult content and behavioral advertising to minors. Responsibility follows function: parents set preferences, platforms convey them, and apps apply them.
No policy will eliminate online risk. But a framework that reduces transaction costs, avoids collateral censorship, and preserves access to protected speech comes closer to the constitutional and economic balance the law demands. POPA moves in that direction by strengthening parental authority without turning the First Amendment into a permission slip.
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