Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
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.
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).
For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
> The legal question is posed: Who is liable under Roman law?
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
> My question is why does anybody have to be liable at all?
This question mistakes what civil law is doing. A more accurate framing would be, “why does anybody have to bear the loss?”. But of course, somebody must. So the task of civil law here is to determine who. Certain policy choices will align better or worse with a sense of fairness, better or worse with incentives that could reduce future losses, etc.
"The loss" is already performing an abstraction to create something generic that can/must be assigned. The person who died is dead regardless of the creation of that assignable loss.
If there are too many instances of people dying in such situations, then the fundamental way to solve that is to prevent such situations from existing. A specter of civil financial liability is but one way of trying to do this, and having judges create common law theories is but one way of assigning that liability. Relying on those methods to the exclusion of others is not a neutral policy choice.
That's such a strange interpretation that disagrees with my intuition.
If the Yankees hit a practice ball out of their stadium and into my house, causing bodily harm to a loved one, I wouldn't be satisfied with any of the reasoning in your comment.
More generally, people are allowed to take on risk as per their own appetite, but legal liability allows risk-hungry individuals to be incentive-aligned with everyone else.
I don't actually find it a particularly strange interpretation.
Here's another lens:
I install cabinets in your kitchen. Your loved one trips, hits the cabinets, breaks their neck and dies.
Should I be liable in this case as well? I did a thing that was involved in harming your loved one... if the cabinet hadn't been there, they might not have died.
---
In both cases, it's pretty clear that there's no intent to harm your loved one. At best you're arguing that it was "foreseeable" that hitting a baseball might harm someone, and that it wasn't "foreseeable" that installing cabinets would harm someone.
But clearly that's ALSO wrong, because we know people have been hurt hitting cabinets before.
So clarify how you'd assign blame in this case, and why it's different from the baseball case?
Basically - your stance is that risk is always a decision someone has made, but I find disagrees with my intuition. Risk is an inherent part of life.
The whole point is that there's a legal system that allows a plaintiff to make an argument that there was negligence at play, and OP outlined a logical list of examples of how it could be argued up to the government itself being negligent for zoning. It's the job of the legal system to remove the ambiguity of "seemed", particularly in the context of tort and compensation.
This example just happens to be less obvious than a construction company building a house or bridge that collapses and kills people, and most cases in front of a court are equally ambiguous.
Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Seems to be less of an issue in practice, as the level of detail is pretty clear unless you're operating at the "bleeding edge" of legal understanding, in which case I imagine you can afford to hire someone to figure out the details to you.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
It's not about "unique court cases". Surely you must have noticed that whenever someone asks online whether it's legal to do some apparently reasonable but tricky thing, the answer is almost always "ask a lawyer"? How many of those people can actually afford a lawyer?
Do you actually think it's ok for freedom to only exist for people who can afford lawyers?
The answer is "ask a lawyer", because giving legal advice on the Internet is opening yourself to significant legal risk. That's true even if you are a lawyer - hence the "I'm a lawyer but not your lawyer" disclaimer.
maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
perhaps it then becomes a matter of policy to periodically reformulate the law so it is compact and understandable and illustrated with examples for the general public. i wonder if llms will be able to do this reliably ever.
One of the awesome things about the American Constitution is that it's not really written in complicated language. Of course this hasn't made things straightforward or easy.
A corollary to your second paragraph is that you can concentrate power if you keep the masses from understanding it fully or able to practice it competently. This is why passing the bar exam is so difficult. What if most criminals were as adept at fighting their charges as they are at physically fighting? (Meaning: won a healthy percentage of the time). The system is designed to crush people and concentrate wealth and power in the hands of a few.
In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
> If enough people stop believing in the law, it really threatens those in power.
I think this is why the thing judges hate the most is people admitting when the law gives them an unfair advantage.
A rule that unjustly benefits someone is fine as long as they don't break kayfabe. Big Brother loves you, that's why you can't install apps on your phone, it's to protect you from harm. The incidental monopolization, censorship and surveillance are all totally unintentional and not really even happening. Oceania has always been at war with Eurasia.
Whereas, declare that you're shamelessly exploiting a loophole? Orange jumpsuit.
I agree, but that's the uncharitable interpretation. The charitable one is that intent matters. Those in power being threatened tends to strongly correlate with societal instability and a distinct lack of public safety. I may not always agree with the status quo but I don't want to live in Somalia either.
There is an action you can take that does two things. One, it makes it marginally more expensive to commit fraud. Two, it makes it significantly more expensive for your existing customers to patronize a competitor. If you do it, which of these things was it your intent to do?
The answer doesn't change based on whether you announce it. You can fully intend to thwart competition without admitting it. And, of course, if the only way you get punished is if you admit it, what you really have is not a law against intending to do it but a law against saying it out loud. Which is poison, because then people knowingly do it without admitting it and you develop a culture where cheating is widespread and rewarded as long as the cheaters combine it with lying.
Whereas if the law is concerned with knowledge but not "intent" then you'd have a law against thwarting competition and it only matters what anyone would expect to be the result rather than your self-proclaimed unverifiable purpose.
But then it's harder to let powerful people get away with things by pretending they didn't intend the thing that everybody knew would be the result. Which is kind of the point.
FWIW, laws aren't merely abstract tools of oppression, they're what binds groups larger than ~100 people into societies. And the true fabric laws are made of, is one of mutually-recursive belief, everyone's expectation that everyone else expects they're subject to them. Threaten that belief, the system stops working. The system stops working, everyone starves, or worse.
The way you're supposed to do that is by having laws that are actually reasonable and uniformly applied.
Having laws that tilt the playing field and then punishing anyone who admits the emperor has no clothes is just censorship. People still figure it out. Only then they get rewarded for knowing about it and not saying anything, which causes the corruption to spread instead of being opposed, until the rot reaches the foundation. And that's what causes "everyone starves, or worse."
> Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
Not quite that simple.
If enough people stop believing in the law, the society breaks apart, and you have people shooting each other in the streets trying to loot supermarkets and extend their lives for a week or two, before inevitably dying of starvation.
This is serious stuff. Society and civilization are purely abstract, intersubjective constructs. They exist only as long as enough people believe in them -- but then, it's still not that simple. Actually, they exist if enough people believe that enough other people believe in them.
Money, laws, employment, contracts, corporations, even marriages - are mutually recursive beliefs achieving stability as independent abstractions. But they're not independent - they're vulnerable to breaking if large group of people suddenly start to doubt in them.
It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
If you disregard reality, you will never understand the world around you to make change.
If you disregard idealism, you will only ever be able to react. You will end up dragged around by the nose, and pulled towards someone elses ideal that might not be so good for you.
Thinking that power is inviolable is an idealism that benefits existing power. They don’t want you to think of the countless times power has been overthrown, and a more just society has been built on the ruins of one with benefits for only those with power.
> Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all.
Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47.
Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
Oof, I couldn't stand to make it through one episode of Strict Scrutiny. It was a political podcast dressed up as if it were a legal podcast. Not interested.
You can’t talk about the Supreme Court/US legal system and just omit politics. They also don’t make any sort of promise to be neutral or objective top to bottom.
They aren’t judges making decisions, they’re talking about the law on a podcast.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
"The insistence on perfect age verification requires ending anonymity. Age verification to the level of buying cigarettes or booze does not.
Flash a driver's license at a liquor store to buy a single-use token, good for one year, and access your favorite social media trash. Anonymity is maintained, and most kids are locked out.
In the same way that kids occasionally obtain cigs or beer despite safeguards, sometimes they may get their hands on a code. Prosecute anyone who knowingly sells or gives one to a minor."
I've never had my ID recorded at any liquor store in my life. I've bought alcohol in multiple countries. If that happens where you live I'd fight to have that practice banned legally for alcohol and tobacco purchases. Stores are definitely selling it to insurance companies.
Also after I had a certain number of birthdays, clerks have stopped demanding my ID. So my purchases are pretty much anonymous.
The card should be issued by a private company, or ideally, multiple companies. And it should be a scratch-off card with a unique code, so that codes can't be tied to transactions.
This, but seriously. Maybe some age token company might also run a raffle or other promotion.
EDIT: Because age verification tokens will likely be a commodity, low-margin business with little differentiation. So I assume companies will do stuff to make their token more attractive than the competition.
In my state, they scan your ID and check it with the state's database. Store policy is usually to do it for everyone, even if they obviously are above the age of 21, and the state mandates ID checks for anyone suspected to be 27 or below.
Historically liquor store checks were purely visual. These days they are often digital, meaning claims about privacy might (or might not) be outdated. The general principle still applies though. The physical infrastructure already exists, the ID checks do not necessarily need to be digitized or recorded, and even if they are the issued tokens don't need to be tied to the check.
Grocery stores already sell age restricted items as well as gift cards that require activation. The state could issue "age check cards" that you could purchase for some nominal fee. That would require approximately zero additional infrastructure in most of the industrialized world. The efficacy would presumably be equivalent to that for alcohol and tobacco.
I don't trust that the information about my identity would not be recorded while selling me my "free speech token". So the chilling effect on free speech would be exactly the same.
That would largely depend on the implementation details I think. Both those of the ID check itself as well as the precise nature of the tokens.
Consider a somewhat extreme example. A preprinted paper ticket with nothing more than a serial number on it. The clerk only visually inspects the ID document then enters the serial number into a web portal and hands it to you. When you go to "redeem" it the service relays the number back to the government server rather than your local device doing so directly. That would be far more privacy preserving than the vast majority of present day clearnet activity.
> The clerk only visually inspects the ID document then enters the serial number into a web portal and hands it to you.
No absolutely not. There's no need for it. We don't require Internet connected beer cans to phone home to a government server and recheck your driver's license when you're cracking them open.
> When you go to "redeem" it the service relays the number back to the government server rather than your local device doing so directly
Your possession of the token when you enter it into your social media account is proof enough that you're of age. The social media website only needs to call the token issuer's API to verify its validity. And all the token issuer should know is it's a valid token sold to a buyer of legal age. Anything more is needlessly complicated and risks anonymity. No recording of IDs in any way, shape or form whatsoever.
And there's no need to involve the government or government servers in any of the implementation or technology. It can be an open, published standard. Any company that can get their cards in stores, and sold with age verification, should be able to participate. All participants can be periodically inspected by the government to ensure compliance with standards.
Entering the serial number is the equivalent of the gift card activation step. It prevents theft and black market resale of a giant stack of unissued tokens.
As to the rest of what you wrote, isn't that exactly what I already described? The only notable difference is that your scheme permits non-government token providers.
How would I know the Clerk wasn't instructed to record the name from my ID? Also this runs into the same problems as voter ID laws, not everyone has an ID that they can show at a liquor store.
Is photographic memory a common job requirement for clerks?
Also usually once you turn a certain age they stop asking you for ID. Again, I'm not aware of how things work in place where they customarily scan and store your ID for alcohol purchases. I would lobby my legislators and fight this odious practice tooth and nail. The store is almost certainly selling that information.
Because you're standing there watching him. Have you ever witnessed him record your name or anything else when you purchase alcohol? Given the (admittedly rather restrictive and unlikely) implementation I described this quickly approaches the level of paranoid conspiracy.
Yeah, it runs into the same socioeconomic problems. Not just voter ID but also tobacco, alcohol, most weapons, and in many places other than the US medical care just to name a few. So it's already a well established problem that people keep and eye out for and at least try to address.
Consider that the alternatives are the continued normalized unfettered access of brainrot by young children or else requiring an ID check in a manner that blatantly compromises privacy. On the whole the liquor store approach seems like a good solution to me.
To be fair there is another alternative that for some reason seems widely unpopular. Make headers indicating age restricted content a requirement and legally require the OEM configuration of devices to support parental controls based on such headers. That would be a slightly less efficacious solution but would involve noticeably less ID checking.
In my proposal private companies would issue the "age check cards" for sale, not the state.
And I don't know how things work in other places, but I've never had my ID scanned when buying alcohol. These days clerks don't even ask me for ID because I obviously appear to be legal age.
In my proposal the token would be a scratch off card with a unique code. It can't be associated with the transaction.
If they don't provide an easy opt-out link then why not just block the sender and move on? Unlike the less legal operations I wouldn't expect a legitimate business to rotate domains or otherwise attempt to evade blocks.
I prefer to only report genuinely malicious behavior. As long as there's no active attempt at block evasion I figure reporting it is just increasing noise and generally making things worse for everyone. It's the active block evasion crowd that make any and every network communication protocol a pain in the ass to use at scale. It wasn't simpletons using a single static IP address that triggered such widespread adoption of Anubis overnight.
Look I'm just trying to distinguish "active circumvention of blocks" from pretty much everything else. Because the former is what destroys the usefulness of protocols while the vast majority of other things can be trivially resolved by blocking the offending party. Including { corporate service } that I don't use sending me { unwanted thing }.
If a bot that sends a fixed set of headers and is behind a single static IP is behaving poorly and slowing down your server you can block it and move on. Whereas when an abhorrently selfish operator with a client that actively hinders fingerprinting rapidly rotates through hundreds of thousands of IPs you end up with mass adoption of solutions like Anubis.
99.9% of spam is not active circumvention of blocks. It comes from so many sources you can't block them, but they are true different sources and not a block circumvention technique. That's why we decided to come down with the biggest hammer on every single source.
That doesn't match my experience at all. If I disable filtering what I see is a slew of ephemeral domains. Without DMARC I'm sure they would instead be official looking and fake.
> It comes from so many sources you can't block them,
Nonsense. If it were really countless fixed sources then a centralized domain blacklist would be sufficient. The issue is that the sources - both domain and IP - are aggressively rotated and even spoofed whenever possible.
This is the difference between standing on a street corner shouting "shit" and taking a shit on a street corner.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
Most modern social media is the latter, but for trash and propaganda, rather than sex. So why doesn't the court apply the same rule that it's okay to check IDs on entry?
Probably because there are reasonable principles to draw on about withholding access to explicit sexual content from children, but there are no similar principles about trash or propaganda. Trash and propaganda are both pretty clearly within the remit of permitted free speech.
Bookstores that carry porn are porn shops. Apps that carry porn are porn shops, and since the app store has apps that carry porn, the app store is a porn shop.
Can you back that up? Basically nowhere else I'm aware of do we draw that kind of expansive categorization. A gas station isn't a book store if they have one rack of books next to all the snacks. A book store isn't an electronics shop if they have a rack of e-readers.
The world is very complex. It's effectively impossible to write laws on most topics that perfectly capture all nuance. Which is why we have a judicial system that can look at a law and a situation and say "nope, this law (or this usage of a law) is incorrect". Which is what's happened here, where the court issued an injunction on enforcement of the Texas law.
Far from it, but I'd rather not drag things so severely off topic. I'll just point out that you used to be able to mail order some surprising (at least by modern sensibilities) stuff.
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Because that's the way our courts have ruled on it.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
True, but the executive and legislator are bound to ignore the courts if their interpretation violates the constitution. The judicial branch for instance can't simply declare that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" means that "Clarence Thomas is god emperor of the US and commands all the armed forces."
If they could interpret the constitution and that was that, then the judicial branch would basically have ultimate power and be exempted from the checks the other branches have on them.
The thing authorizing that -- the constitution. So unless the legislative can ignore the "interpretation" for the purposes of impeachment, the court can simply "interpret" the part that you think authorizes impeachment to just mean something like "the meaning of life is 54."
To be honest I am not sure if you are even discussing this in good faith anymore. The idea that the Supreme Court could render impeachment of them null and void and the legislative and executive branches would just be :shrugging-emoji: is a little silly.
Yes, the court’s job is to interpret the law. But the Constitution is not code and the judges are not the CPU. Ultimately, the rule of law will always be dependent on people.
The problem is that I don't believe that the court is arguing in good faith any more. In which case silly interpretations don't seem beyond the realm of possibility.
I'm assured by lawyers of both parties that this is not the case. And since I am not a lawyer their understanding is worth a lot more than mine. But as someone who does have significant credentials in philosophical and scientific reasoning, I can say that legal reasoning is not at all what I am familiar with.
Yes, exactly, the executive can ignore the court's interpretation, including an incorrect interpretation of impeachment (perhaps interpreted in such a way that impeachment as you know it would be impossible), if it violates the constitution.
OK so the court can then simply declare an "interpretation" of impeachment that makes it impossible, or meaningless then, or perhaps also interprets any such jailing by the executive as illegal. Since they are the ones that get to decide what the text written in the constitution actually is interpreted to mean and apparently their "interpretation" cannot be ignored.
IIRC didn't the courts empower themselves to interpret the constitution? Nothing in the constitution says they can. Of course, since they interpret the constitution, they can just insert an interpretation that says they interpret the constitution...
yes. IMO one can argue that it was a very reasonable pragmatic decision that set a questionable precedent for branches of the government creating powers for themselves out of whole cloth. There is a LOT of commentary in intellectual circles that hail Marbury v. Madison as some sort of genius decision, and it's quite frankly horrifying.
That didn't happen until 1968 and by that time the constitution was basically toilet paper. The answer is ever since the progressive (and on some occasions, before that) era the constitution was more of a guideline, occasionally quoted by judges much like you can quote the bible to support pretty much anything if you twist it enough.
The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
> I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself.
Right to keep and bear arms -- federally 21 to buy a handgun and 18 to buy a rifle/shotgun from an FFL. Although sometimes you can touch federal law (NFA) and not have such limit -- a 12 year old could buy a machine gun or grenade for instance privately and still be able to buy a federal tax stamp.
Speech - a little looser but the 1A rights of minors in schools are a little bit less than that of staff. It's been awhile since I looked over the cases but IIRC staff had slightly stronger free speech regarding political speech than students (I'll try to dig up the case later if someone asks for it).
> The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
The Wartime Prohibition Act says you are wrong. The 18th Amendment was certainly necessary to both make the policy irrevocable without another amendment, and to give states independent power notwithstanding usual Constitutional limits on state power to enforce prohibition on top of federal power, it is much more dubious that it was necessary for federal prohibition.
The Wartime Prohibition Act was passed during the drawdown from World War I and the basis for upholding it was the wartime powers of Congress because of a scarcity of grain from the war.
The last Congressionally declared war was World War II, so if that was supposed to be the constitutional basis for the Controlled Substances Act, there would seem to be the obvious problems that the war was generations ago and nobody is diverting scanty wheat from the food markets to make MDMA.
I just want to make clear, you completely ignored that I answered your questions and instead argued against someone else's tangent about meth (which although the government is unconstitutionally regulating as applied, isn't an explicit constitutional right which was what we were discussing) because they desperately needed to side rail the fact I was right by going on a red herring hunt (indeed, one where I was taken to task for apparently mentioning the constitution on a question that involves the constitution).
The wartime prohibition act, to the extent it regulated intrastate trade -- was also beyond the powers restrained by the 10th amendment. The fact a wartime era court lol'ed their way into regulating intrastate commerce is just another example of the federal government happily steamrolling rights (something they are especially good at around wartimes), but they needed the amendment to keep it up in non-wartime.
----- Re: irishman due to throttling ------
>Ignore meth. Do it again with wire fraud.
The question was about age limits on things that there is an explicit constitutional right of. You don't have a right to meth nor wire fraud. Your argument here doesn't make sense, nor is there an age where meth or wire fraud are legal which again was the question.
You’re missing the forest for the trees. It’s ok to be wrong.
Daww, edit:
The seed for this thread was:
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
I pointed out that "unconstitutionality" wasn't accurate, because it isn't. You went on about jurisprudence whathaveyou. You moved the goalposts. I suppose I moved with them to try and make my point.
You're confusing different accounts for one another. Jurisprudence is relevant because that's ultimately what determines what is and isn't constitutional in practice. The reality is that at least some of the rights which don't have age exceptions explicitly attached to them are nonetheless restricted by law, said restrictions having been deemed constitutional by SCOTUS. The 2nd amendment for example.
Perhaps if you had examples or decisions to explain what you're talkinh about, you would make your point better?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
> States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong
This is wrong. It's particularly wrong in the way that you draw a distinction between theory and practice. It's so wrong that it's backwards.
In theory, the states set age related rules. In practice, they must set them to what the federal government tells them to. This was established in the specific case in 1984 [0] when Congress realised that it could withhold funding to states based on how quickly they agreed with it, and in the general case in 1861 [1] when the United States initiated a war that would go on to kill 1.6 million people after some states asked it only to exercise the powers derogated to it in its constitution.
Even the age at which you can buy various types of guns varies from state-to-state and that is ostensibly a constitutional right assured to all citizens. In Montana, a child is allowed to buy a gun from anybody other than an FFL. If they're 18 they can also buy rifles from FFLs. They can even buy machine guns if they have the money for it. Meanwhile in California, an 18 year old cannot buy even a single shot .22 rifle, they aren't allowed to purchase any gun until they are 21 years old. Imagine if Texas passed a law saying that you don't get your first ammendment rights until you're 21 years old. This is the America we live in.
Have you looked at age-of-consent rules across the various states? Boating license age requirements? How have those two completely unrelated things have-or-not changed over the past 100 years across all 50 states? Age for kids to sit in the front seat of a car? Learn to drive a car? Get a work permit?
States have age-related laws at an insane level. I don't know what you're on about.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
If someone set a bomb using a speech recognition algorithm looking for specific elements of political speech, and I knowingly detonated it with that kind of political speech, would the act of my political speech be protected speech?
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
Is this a troll post? It's taught in Constitutional Law 101 that shouting "fire" in a crowded theatre is, in fact, Constitutional.
The source of that quote was a war-time judge who used that analogy in his ruling in 1919 against people handing out anti-war flyers. A ruling that was overturned in 1969.
It was precedent for 50 years.
That precedent died 56 years ago. It's been dead for longer than it even existed.
Shouting fire in a crowded theater was never literal, it was an analogy for speech that runs counter to the government's desires, namely protesting the draft to fight in some pointless inhuman European meat grinder, thousands of miles from home.
Anti-war protests were what was meant by "shouting fire in a theater". That's what our government was trying to ban.
It's certainly not a strawman when it's an oft repeated argument going back to Oliver Wendell Holmes' dictum in Schenck v. United States (and even further, as Holmes didn't invent this argument). The argument doesn't change if it's "There's a fire! Run, everyone!" -- and saying "that isn't speech, it's an emotional trigger" would be an intellectually dishonest evasion--lots of actual true blue speech triggers emotions.
P.S. I won't engage further with people clearly not arguing in good faith.
There it is. Actual true blue speech triggers emotions.
Speech communicates ideas. It is mostly opinions. If you state something as fact, when it isn't, it is libel. As such, saying "there is a fire" in the theater is not speech, it is an exclamation.
If you aren't for free speech, then yes, yawning is speech.
Note that I didn't say anything about the 1st Amendment having no limits, nor does the Constitution say that--someone else said that I was "Correct" but put words in my mouth.
As for that "shall not be infringed" wording that is in the Constitution, there's a whole lot of sophistic, intellectually dishonest ideological rhetoric around it. The historical record shows clearly the Founders did not mean by their language what many people today insist that it means--for instance, they passed a number of gun laws restricting their use, and the original draft of the 2A contained a conscientious objector clause because, as the opening phrase indicates, "keep and bear arms" at that time referred to military use (and "arms" included armor and other tools of war; it was not a synonym for "firearms"). And some of the modern claims are absurd lies, such as that the 2A was intended to give citizens the means to overthrow the government, or that "well-regulated" doesn't mean what it does and did mean. George Washington was dismayed by the Articles of Confederation not giving him the power to put down Shay's Rebellion ("Let us have a government by which our lives, liberties, and properties will be secured"), and one of his first acts after the Constitution was ratified was to use the militia to put down the Whiskeytown rebellion.
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
This protection is not provided by judges or the Bill of Rights. It’s provided by the attitude and behaviours of all Americans. If enough Americans start treating 1A as conditional, the court decisions will slowly start reflecting that. The system won’t protect the people from themselves.
Yeah, but slowly is an understatement. Scotus judges serve until death, and they're appointed rather than elected. Even then, they're allowed to make very unpopular decisions.
Judges are struggling to find the analogies known to them from the world of 70's. Apps are not like books only. They are like movies, sports, tools, postal mailbox, pet, friend, bank, money, shop, cab and anything you can imagine. When movies require age-restriction, apps can do so too.
And which movies, when broadcast on TV (i.e. viewed inside people's homes), verify the age of everyone watching before continuing? Your analogy is just as flawed.
When movies are broadcast on TV, they must first be censored according to the FCC's rules. Of course this only applies to broadcast, not cable, but cable doesn't get broadcast into people's houses without them signing up for it.
Not defending the law but questioning your interpretation.
Does requiring by law an age of 21 to enter a bar violate freedom of assembly? Lots of important political events and discussion historically in the US have occurred at taverns.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
> As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
> The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history. Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
>The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
You don't understand that news item. The police didn't search a specific person's account, they asked Google (who gave it to them voluntarily) anyone who searched the victim's address in the past week. Nothing unconstitutional about that.
It seems like the equivalent of reading everyone's journals every home in the entire nation. Cartoonishly unconstitutional.
But yes, I'm aware of the Third Party doctrine ruled on by judges whose conception of people making phone calls involved an individual talking to another human being (a.k.a. an operator) to connect you to who you wanted to talk to.
A practice antiquated when the ruling was made and a bygone relic by this point.
Sure, I also dislike corporate policy that doesn't require a warrant for such things. But at the end of the day that is their choice.
My complaint is that Google should not have been permitted that choice in the first place. The entire sequence of events - from requesting the data without a warrant through to handing the data over without a warrant and any following data mining that was done with it should have been forbidden on constitutional grounds. Both parties ought to have been in violation of the law here. We need to fix the gaping hole in our constitutional rights that the third party doctrine represents.
The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
> None of my house, papers, or effects are owned by anyone but myself.
Do you self host your own email? No? Those are "papers" that your email hosting provider can consent to providing law enforcement access to without a warrant.
Do you use search engines? Your search history is in the same boat with the search engine company.
Don't use a VPN? All of your internet traffic is in the same boat with your ISP
You use a VPN? All your internet traffic is in the same boat with the VPN.
The list goes on and on. It is almost certainly true that some company has private information about you that they can turn over without a warrant.
You forgot to respond to anything except the "houses" part of this.
It's obvious what GP and others are saying - that the concept of things like "papers" and "effects" are no longer as concrete as they used to be. What used to be physical letters stored in one's home are now emails stored on any number of servers.
> Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize.
Renters are one (large) category. No wasn't referring to mortgaged houses, iiuc those belong to the owner, the lender merely maintains certain rights to reposses in the case of a default.
I was more referring to the average US resident or American who agrees to broad terms and conditions with, their ISP, Microsoft 1 drive, Roomba of the year, microphoned smart TV, email provider, cell service provider, etc. Many of which are essential for navigating modern society.
I think he meant things like his personal notes and files stored in an app like Evernote, which law enforcement can request copies of. I don't like the idea of someone reading my private notes...
If we all acknowledge that the internet is a beautiful disaster that shan’t be trusted, which it always has been and always will be, we can all collectively get over ourselves about privacy on the internet. “Hey world I went overseas for vacation/holiday! I cooked this amazing dinner! I’m cheating on my SO using an online chat app!”
Maybe stop doing all 3 of those things. I can’t tell you how liberating it’s been since I got off all social media in ~2008. It’s super easy to be very private if you so choose. Having any kind of internet presence is a voluntary sacrifice of privacy.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
> Every book in a bookstore can be verified because the content can be known and audited
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
That’s an argument that sounds convincing in principle, but in reality I can walk into any independent bookstore and find it’s not filled with porn and AI slop, so clearly there is a successful vetting process going on. Namely, the publishers vet the books then the bookstore owner only has to vet the publishers. A proof of concept internet equivalent is if I scrape a bunch of trusted YouTube channels onto a NAS and give my kids access to that NAS but block YouTube access otherwise.
This hypothetical independent shop you walk into is not filled with slop because it's curated; the store is intentionally keeping its inventory to a manageable level so that it can be screened first.
If the owner stopped caring and just decided to let any book that passed through the automated "does this book immediately and actively harm the customer?" screening machine then you'd have something that approximates the app stores.
Yes, but you can't stop eight year olds from grabbing a James Patterson or Stephen King novel from the shelf. Their parents should, and some librarians might throw a moral exception to their choice, but if they wanna read It, they're gonna read It.
Enforcing anything other than that is a huge 1A violation IMO.
Phrasing this as "you" versus "a second party to the child" involves me, where I originally did not present a statement that would give the impression that I'd be involved. Keep me - "you" - out of it. I'm simply making fun of this analogy.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
Who cares if you don't like his analogy? His point is that this is a violation of the 1st Amendment. Which, by the way, does not mention anything about content being known or not.
I should have contacted you, Refreeze98, prior to posting my comment that contained far less of an abstraction than you've condescendingly supplemented.
As a UK subject, with a government that has begun implementing the online safety act, prosecuting people for tweets that clearly weren't inciting violence and getting rid of jury trials for cases with fewer than five years sentences, I look on with envy at your constitutional protections of the individual.
The problem interpreting the intent of that tweet is that Lucy Connolly herself admitted to authorities she was inciting violence so becomes hard to build a defence at that point. Incitement isn’t first amendment protected in the US either https://codes.findlaw.com/us/title-18-crimes-and-criminal-pr...
The major part of this case is that without a jury trial he'd probably have had zero chance of being cleared. Countless others were persuaded to plead guilty to avoid a long time in prison and then were given long sentences. h
he was strong enough not to give in.
You are right, freedom of expression in the US doesn't cover inciting violence, but it has an high bar, imminent lawless action:
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
Beautiful :-\ But it's not a backdoor on devices, it's eavesdropping push notifications when they pass Google's or Apple's servers.
Corollary: a secure notification should consist of a link with a random number token which opens the real message via an authenticated API on an encrypted channel. Would look a bit weird though. iOS at least has silent notifications for that.
No company in the US has any choice when Federal, State, or local officials get a court warrant and want data on your server.
That's why the surveillance capitalism business model is so dangerous. If you horde user data to make ad sales more profitable, you put your users at risk.
If app developers want to pass customer data in notifications, the data they are passing should be encrypted so that Apple (or Google) doesn't have access.
You can't hand over what you can't access.
As they say in Apples developer docs:
> Important
Don’t include customer information or any sensitive data, like a credit card number, in a notification’s payload. If you must include customer information or sensitive data, encrypt it before adding it to the payload.
You can use a notification service app extension to decrypt the data on the user’s device.
What also gets glossed over is the privacy tradeoff: to "protect minors," you end up collecting more sensitive data about everyone, including adults downloading trivial apps
I spend well over a month now on the topic to implement the different half cooked APIs into our apps. The chance that this gets overturned or blocked was high but we had to race anyways.
I’m curious what this means for similar legislations in others states line Utah and Louisiana that where planned to get into effect later this year.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape.
I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible.
Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada…
There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks.
Well let’s see what happens next.
I don't understand why it feels like out of the blue there is suddenly a rampant and somehow worldwide effort left and right to increase censorship, age verification, etc on the internet. Also I don't get why it seems like so few people care in comparison to years ago during the whole SOPA/PIPA thing where there seemed to be widespread and significant vocal opposition.
On the age verification thing the only reasonable proposition i've heard would be a feature that allows parents to set some setting that gives a device users age or age range for mobiles and tablets. I think this covers a reasonable percentage of use cases if your goal is actually protecting kids and not just using that as deceptive cover to sneak in widespread surveillance laws. A simple setting that says for example this ipad user is 10-13yrs is privacy preserving enough and would not negatively impact adults and because it would be coming from the device itself would actually be harder to get around vs VPN's or spoofing IDs, etc.
The idea of trying to address all devices in all scenarios is absolutely preposterous in my opinion.
1. easy wins for politicians in conservative areas of "won't somebody think of the children?!?!" so they can look like they're doing stuff to stick it to big tech while appealing to their voters' sensibilities
2. wanting to de-anonymize the internet as much as possible in the name of CSAM and anti-terrorism but is actually about wanting unchecked surveillance. the same reason we have to bang the drum against anti-encryption laws that they try to pass every several years
Text has always been treated differently than images or video, partly for historical reasons and partly because regulating it runs straight into classic First Amendment landmines
Text just fundamentally isn't nearly as graphic as images/video.
Write the most sexually disturbing sentence you can come up with and it's going to be rather meh and possibly quite comical. And any of the gravity that it does have comes from the reader's ability to generate the visuals themself which is mostly out of reach for children who don't have the experience to necessarily know what's even being described.
Because people were so sick of their shit, and they already got their asses beaten so hard that they turned a fundamentalist city into an atheistic one. Banned in Boston used to be a thing. Boston itself got sick of that puritan bullshit.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
So, the law seems broken as judges question and interpret a law as unconstitutional. If every judge across the country does this, we can dismantle entire law. Awesome. The power of capitalism and platform monoply is at full display.
Not so fast partner, the Supreme Court has upheld as Constitutional, routine and regular administrative requests including documentation to prove age and income. Otherwise, we would have a paper tiger Income Tax.
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
Porn has always been treated differently than other speech that is why most age verification laws want for it first. As for your other examples those are all technically voluntary, as it’s unlikely a government mandate that nobody under 17 can watch an R rated movie would pass constitutional muster. Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
> Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
The question isn't whether your or my proposed regime is practical. The first amendment precedent is clear that the government is not allowed to restrict children's speech any more than it is adults' speech aside from some narrow and tailored exceptions.
Right. So SB2420 and the federal court judgment are the steps in the process to narrowly tailor another exception. Likely driven by the practical reasons mentioned earlier.
"Cannot" in the US means no route to enforcement in that context. Distribution of NC-17 content to minors was never directly illegal, but doing so anyway would open the door for potential legal issues under the more broad umbrella of laws that cover "distribution of lewd or obscene content to a minor" which is more of a "do so and find out" concept of enforcement versus specifically identifying NC-17/X content by law.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Judge Robert Pitman said that it violates the First Amendment and is "more likely than not - unconstitutional."
We enjoy 1A protections of speech and assembly. When we consider our rights, the productive, default position is that government is told no (when it wants to restrict us).For those curious about the "consistent principle of law" here - SCOTUS wrestled with nearly exactly this question in Free Speech Coalition v. Paxton earlier this year, and effectively emboldened more of these laws.
Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all. Later precedent (Ashcroft, Sable, Reno, Playboy) consistently applied strict scrutiny when laws burdened adults' access to protected speech, even when aimed at protecting minors.
In Paxton the majority split the difference and applied intermediate scrutiny - a lower bar than strict - claiming the burden on adults is merely "incidental." Kagan had a dissent worth reading, arguing this departs from precedent even if the majority won't frame it that way. You could call it "overturning" or "distinguishing" depending on how charitable you're feeling.
The oral arguments are worth watching if you want to understand how to grapple with these questions: https://www.youtube.com/watch?v=ckoCJthJEqQ
On 1A: The core concern isn't that age-gating exists - it's that mandatory identification to access legal speech creates chilling effects and surveillance risks that don't exist when you flash an ID at a liquor store.
Note: IANAL but do enjoy reading many SC transcripts
Law is a strange and possibly the only aspect in human societies where people are by default assumed to know, understand and follow it to the letter when everybody acknowledges that law is open to interpretation. You cannot in most cases claim ignorance as it can be abused by criminals.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
> The legal question is posed: Who is liable under Roman law?
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
> My question is why does anybody have to be liable at all?
This question mistakes what civil law is doing. A more accurate framing would be, “why does anybody have to bear the loss?”. But of course, somebody must. So the task of civil law here is to determine who. Certain policy choices will align better or worse with a sense of fairness, better or worse with incentives that could reduce future losses, etc.
"The loss" is already performing an abstraction to create something generic that can/must be assigned. The person who died is dead regardless of the creation of that assignable loss.
If there are too many instances of people dying in such situations, then the fundamental way to solve that is to prevent such situations from existing. A specter of civil financial liability is but one way of trying to do this, and having judges create common law theories is but one way of assigning that liability. Relying on those methods to the exclusion of others is not a neutral policy choice.
That's such a strange interpretation that disagrees with my intuition.
If the Yankees hit a practice ball out of their stadium and into my house, causing bodily harm to a loved one, I wouldn't be satisfied with any of the reasoning in your comment.
More generally, people are allowed to take on risk as per their own appetite, but legal liability allows risk-hungry individuals to be incentive-aligned with everyone else.
I don't actually find it a particularly strange interpretation.
Here's another lens:
I install cabinets in your kitchen. Your loved one trips, hits the cabinets, breaks their neck and dies.
Should I be liable in this case as well? I did a thing that was involved in harming your loved one... if the cabinet hadn't been there, they might not have died.
---
In both cases, it's pretty clear that there's no intent to harm your loved one. At best you're arguing that it was "foreseeable" that hitting a baseball might harm someone, and that it wasn't "foreseeable" that installing cabinets would harm someone.
But clearly that's ALSO wrong, because we know people have been hurt hitting cabinets before.
So clarify how you'd assign blame in this case, and why it's different from the baseball case?
Basically - your stance is that risk is always a decision someone has made, but I find disagrees with my intuition. Risk is an inherent part of life.
> nobody seemed to act in any way negligently
The whole point is that there's a legal system that allows a plaintiff to make an argument that there was negligence at play, and OP outlined a logical list of examples of how it could be argued up to the government itself being negligent for zoning. It's the job of the legal system to remove the ambiguity of "seemed", particularly in the context of tort and compensation.
This example just happens to be less obvious than a construction company building a house or bridge that collapses and kills people, and most cases in front of a court are equally ambiguous.
Strange and destructive. I believe comprehensible law is a human right that is critically underacknowledged. Like, up there with the right to speech and a fair trial.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Seems to be less of an issue in practice, as the level of detail is pretty clear unless you're operating at the "bleeding edge" of legal understanding, in which case I imagine you can afford to hire someone to figure out the details to you.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
It's not about "unique court cases". Surely you must have noticed that whenever someone asks online whether it's legal to do some apparently reasonable but tricky thing, the answer is almost always "ask a lawyer"? How many of those people can actually afford a lawyer?
Do you actually think it's ok for freedom to only exist for people who can afford lawyers?
The answer is "ask a lawyer", because giving legal advice on the Internet is opening yourself to significant legal risk. That's true even if you are a lawyer - hence the "I'm a lawyer but not your lawyer" disclaimer.
Fine. You're still missing the point in favor of a technicality. Why does it have to be this way?
maybe we’re inching towards rule by law vs rule of law by making things so abstruse that you need a multiyear education to understand what is allowed, when and where.
As the complexity of the world increases this may naturally happen
perhaps it then becomes a matter of policy to periodically reformulate the law so it is compact and understandable and illustrated with examples for the general public. i wonder if llms will be able to do this reliably ever.
One of the awesome things about the American Constitution is that it's not really written in complicated language. Of course this hasn't made things straightforward or easy.
A corollary to your second paragraph is that you can concentrate power if you keep the masses from understanding it fully or able to practice it competently. This is why passing the bar exam is so difficult. What if most criminals were as adept at fighting their charges as they are at physically fighting? (Meaning: won a healthy percentage of the time). The system is designed to crush people and concentrate wealth and power in the hands of a few.
In the end, we are at the mercy of those with power. Laws are just a way to make their decisions appear fair and appease the masses. If you piss off enough the wrong person with power, it doesn't matter what the laws say, you'll get screwed.
Not quite that simple. Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
There are other means to gaining power, of course.
> If enough people stop believing in the law, it really threatens those in power.
I think this is why the thing judges hate the most is people admitting when the law gives them an unfair advantage.
A rule that unjustly benefits someone is fine as long as they don't break kayfabe. Big Brother loves you, that's why you can't install apps on your phone, it's to protect you from harm. The incidental monopolization, censorship and surveillance are all totally unintentional and not really even happening. Oceania has always been at war with Eurasia.
Whereas, declare that you're shamelessly exploiting a loophole? Orange jumpsuit.
I agree, but that's the uncharitable interpretation. The charitable one is that intent matters. Those in power being threatened tends to strongly correlate with societal instability and a distinct lack of public safety. I may not always agree with the status quo but I don't want to live in Somalia either.
"Intent matters" is the dodge.
There is an action you can take that does two things. One, it makes it marginally more expensive to commit fraud. Two, it makes it significantly more expensive for your existing customers to patronize a competitor. If you do it, which of these things was it your intent to do?
The answer doesn't change based on whether you announce it. You can fully intend to thwart competition without admitting it. And, of course, if the only way you get punished is if you admit it, what you really have is not a law against intending to do it but a law against saying it out loud. Which is poison, because then people knowingly do it without admitting it and you develop a culture where cheating is widespread and rewarded as long as the cheaters combine it with lying.
Whereas if the law is concerned with knowledge but not "intent" then you'd have a law against thwarting competition and it only matters what anyone would expect to be the result rather than your self-proclaimed unverifiable purpose.
But then it's harder to let powerful people get away with things by pretending they didn't intend the thing that everybody knew would be the result. Which is kind of the point.
FWIW, laws aren't merely abstract tools of oppression, they're what binds groups larger than ~100 people into societies. And the true fabric laws are made of, is one of mutually-recursive belief, everyone's expectation that everyone else expects they're subject to them. Threaten that belief, the system stops working. The system stops working, everyone starves, or worse.
The way you're supposed to do that is by having laws that are actually reasonable and uniformly applied.
Having laws that tilt the playing field and then punishing anyone who admits the emperor has no clothes is just censorship. People still figure it out. Only then they get rewarded for knowing about it and not saying anything, which causes the corruption to spread instead of being opposed, until the rot reaches the foundation. And that's what causes "everyone starves, or worse."
> Laws legitimise and stabilise those in power. If enough people stop believing in the law, it really threatens those in power.
Not quite that simple.
If enough people stop believing in the law, the society breaks apart, and you have people shooting each other in the streets trying to loot supermarkets and extend their lives for a week or two, before inevitably dying of starvation.
This is serious stuff. Society and civilization are purely abstract, intersubjective constructs. They exist only as long as enough people believe in them -- but then, it's still not that simple. Actually, they exist if enough people believe that enough other people believe in them.
Money, laws, employment, contracts, corporations, even marriages - are mutually recursive beliefs achieving stability as independent abstractions. But they're not independent - they're vulnerable to breaking if large group of people suddenly start to doubt in them.
It’s not the ideal of the system. We shouldn’t have two tiered justice, the top should be being held accountable.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
Ideal and reality are rarely in alignment, and reality is what we need to be concerned with.
Reality is short term thinking.
Idealism is long term thinking.
If you disregard reality, you will never understand the world around you to make change.
If you disregard idealism, you will only ever be able to react. You will end up dragged around by the nose, and pulled towards someone elses ideal that might not be so good for you.
Thinking that power is inviolable is an idealism that benefits existing power. They don’t want you to think of the countless times power has been overthrown, and a more just society has been built on the ruins of one with benefits for only those with power.
> Previously the Fifth Circuit had relied heavily on Ginsberg v. New York (1968) to justify rational basis review. But Ginsberg was a narrow scope - it held that minors don't have the same First Amendment rights as adults to access "obscene as to minors" material. It wasn't about burdens on adults at all.
Ginsberg was about burdens on adults. In that case, New York law prohibited the sale of content containing nude images to minors. The Supreme Court upheld the conviction of a store owner under that law, who had sold magazines containing nude pictures to underage buyers: https://www.oyez.org/cases/1967/47.
Ginsberg acknowledged that the magazines did not qualify as obscenity as to adults--selling the magazines in question to adults was protected First Amendment conduct. So the age checking necessarily required by the law was a burden on those First Amendment protected sales. Ginsberg necessarily found that burden to be a permissible one.
I would read your summaries of legal precedents again, ahead of lots of people who AAL.
Highly recommend the podcast “Advisory Opinions” if you are interested in Supreme Court analysis.
I also recommend that podcast but I would suggest balancing it with '5-4' podcast or 'strict scrutiny'. Sara and David do a very good job explaining both sides and the law but there are times I think advisory opinions could spend more time on the arguments made by the other side or the weaker portions of their supported view.
Strict scrutiny is fantastic
Oof, I couldn't stand to make it through one episode of Strict Scrutiny. It was a political podcast dressed up as if it were a legal podcast. Not interested.
You can’t talk about the Supreme Court/US legal system and just omit politics. They also don’t make any sort of promise to be neutral or objective top to bottom.
They aren’t judges making decisions, they’re talking about the law on a podcast.
The technical implementation is messy too. Most age verification systems either don't work well or create massive privacy risks by requiring government ID uploads.
https://news.ycombinator.com/item?id=46223051 This one works well. Or at least, as well as age verification for tobacco and alcohol. And equally privacy-preserving.
Agreed! Great idea. I'll save others the click:
"The insistence on perfect age verification requires ending anonymity. Age verification to the level of buying cigarettes or booze does not. Flash a driver's license at a liquor store to buy a single-use token, good for one year, and access your favorite social media trash. Anonymity is maintained, and most kids are locked out. In the same way that kids occasionally obtain cigs or beer despite safeguards, sometimes they may get their hands on a code. Prosecute anyone who knowingly sells or gives one to a minor."
This does nothing to protect anonymity as you are still assigned a unique code that has been tied to your ID at the liquor store.
I've never had my ID recorded at any liquor store in my life. I've bought alcohol in multiple countries. If that happens where you live I'd fight to have that practice banned legally for alcohol and tobacco purchases. Stores are definitely selling it to insurance companies.
Also after I had a certain number of birthdays, clerks have stopped demanding my ID. So my purchases are pretty much anonymous.
The card should be issued by a private company, or ideally, multiple companies. And it should be a scratch-off card with a unique code, so that codes can't be tied to transactions.
And there should be the possibility too win cash prizes! You know what, forget the age thing.
This, but seriously. Maybe some age token company might also run a raffle or other promotion.
EDIT: Because age verification tokens will likely be a commodity, low-margin business with little differentiation. So I assume companies will do stuff to make their token more attractive than the competition.
In my state, they scan your ID and check it with the state's database. Store policy is usually to do it for everyone, even if they obviously are above the age of 21, and the state mandates ID checks for anyone suspected to be 27 or below.
Historically liquor store checks were purely visual. These days they are often digital, meaning claims about privacy might (or might not) be outdated. The general principle still applies though. The physical infrastructure already exists, the ID checks do not necessarily need to be digitized or recorded, and even if they are the issued tokens don't need to be tied to the check.
Grocery stores already sell age restricted items as well as gift cards that require activation. The state could issue "age check cards" that you could purchase for some nominal fee. That would require approximately zero additional infrastructure in most of the industrialized world. The efficacy would presumably be equivalent to that for alcohol and tobacco.
I don't trust that the information about my identity would not be recorded while selling me my "free speech token". So the chilling effect on free speech would be exactly the same.
That would largely depend on the implementation details I think. Both those of the ID check itself as well as the precise nature of the tokens.
Consider a somewhat extreme example. A preprinted paper ticket with nothing more than a serial number on it. The clerk only visually inspects the ID document then enters the serial number into a web portal and hands it to you. When you go to "redeem" it the service relays the number back to the government server rather than your local device doing so directly. That would be far more privacy preserving than the vast majority of present day clearnet activity.
> The clerk only visually inspects the ID document then enters the serial number into a web portal and hands it to you.
No absolutely not. There's no need for it. We don't require Internet connected beer cans to phone home to a government server and recheck your driver's license when you're cracking them open.
> When you go to "redeem" it the service relays the number back to the government server rather than your local device doing so directly
Your possession of the token when you enter it into your social media account is proof enough that you're of age. The social media website only needs to call the token issuer's API to verify its validity. And all the token issuer should know is it's a valid token sold to a buyer of legal age. Anything more is needlessly complicated and risks anonymity. No recording of IDs in any way, shape or form whatsoever.
And there's no need to involve the government or government servers in any of the implementation or technology. It can be an open, published standard. Any company that can get their cards in stores, and sold with age verification, should be able to participate. All participants can be periodically inspected by the government to ensure compliance with standards.
Entering the serial number is the equivalent of the gift card activation step. It prevents theft and black market resale of a giant stack of unissued tokens.
As to the rest of what you wrote, isn't that exactly what I already described? The only notable difference is that your scheme permits non-government token providers.
Oh I see, sorry I misunderstood this comment
> The clerk only visually inspects the ID document then enters the serial number
I thought "the serial number" was the number on the ID document. You actually meant the number on the token scratch card. Makes sense.
> The only notable difference is that your scheme permits non-government token providers.
Right. More accurately it only permits non-government token providers.
How would I know the Clerk wasn't instructed to record the name from my ID? Also this runs into the same problems as voter ID laws, not everyone has an ID that they can show at a liquor store.
Is photographic memory a common job requirement for clerks?
Also usually once you turn a certain age they stop asking you for ID. Again, I'm not aware of how things work in place where they customarily scan and store your ID for alcohol purchases. I would lobby my legislators and fight this odious practice tooth and nail. The store is almost certainly selling that information.
Because you're standing there watching him. Have you ever witnessed him record your name or anything else when you purchase alcohol? Given the (admittedly rather restrictive and unlikely) implementation I described this quickly approaches the level of paranoid conspiracy.
Yeah, it runs into the same socioeconomic problems. Not just voter ID but also tobacco, alcohol, most weapons, and in many places other than the US medical care just to name a few. So it's already a well established problem that people keep and eye out for and at least try to address.
Consider that the alternatives are the continued normalized unfettered access of brainrot by young children or else requiring an ID check in a manner that blatantly compromises privacy. On the whole the liquor store approach seems like a good solution to me.
To be fair there is another alternative that for some reason seems widely unpopular. Make headers indicating age restricted content a requirement and legally require the OEM configuration of devices to support parental controls based on such headers. That would be a slightly less efficacious solution but would involve noticeably less ID checking.
What if the digital infra that issues the token is state or Federal software? That should significantly reduce privacy concerns?
Wouldn't that just increase concerns? When it comes to bad actors in this scenario the primary candidate is the state itself.
In my proposal private companies would issue the "age check cards" for sale, not the state.
And I don't know how things work in other places, but I've never had my ID scanned when buying alcohol. These days clerks don't even ask me for ID because I obviously appear to be legal age.
In my proposal the token would be a scratch off card with a unique code. It can't be associated with the transaction.
I live in the US and haven't had my ID digitally scanned at a bar or liquor store in 10 years, and it only ever happened a couple of times.
That feels like a feature and not a bug given the way some of this stuff is heading.
Don’t let it.
LinkedIn’s verification is maddening
LinkedIn is maddening. If you make the mistake of signing up, it takes years to escape their spam and bs.
I got years of their spam without signing up. Only after several years did they add a way to opt out an email address without making an account.
If they don't provide an easy opt-out link then why not just block the sender and move on? Unlike the less legal operations I wouldn't expect a legitimate business to rotate domains or otherwise attempt to evade blocks.
Why block when you can report to Spamhaus?
I prefer to only report genuinely malicious behavior. As long as there's no active attempt at block evasion I figure reporting it is just increasing noise and generally making things worse for everyone. It's the active block evasion crowd that make any and every network communication protocol a pain in the ass to use at scale. It wasn't simpletons using a single static IP address that triggered such widespread adoption of Anubis overnight.
How is that not genuinely malicious behavior?
Look I'm just trying to distinguish "active circumvention of blocks" from pretty much everything else. Because the former is what destroys the usefulness of protocols while the vast majority of other things can be trivially resolved by blocking the offending party. Including { corporate service } that I don't use sending me { unwanted thing }.
If a bot that sends a fixed set of headers and is behind a single static IP is behaving poorly and slowing down your server you can block it and move on. Whereas when an abhorrently selfish operator with a client that actively hinders fingerprinting rapidly rotates through hundreds of thousands of IPs you end up with mass adoption of solutions like Anubis.
99.9% of spam is not active circumvention of blocks. It comes from so many sources you can't block them, but they are true different sources and not a block circumvention technique. That's why we decided to come down with the biggest hammer on every single source.
That doesn't match my experience at all. If I disable filtering what I see is a slew of ephemeral domains. Without DMARC I'm sure they would instead be official looking and fake.
> It comes from so many sources you can't block them,
Nonsense. If it were really countless fixed sources then a centralized domain blacklist would be sufficient. The issue is that the sources - both domain and IP - are aggressively rotated and even spoofed whenever possible.
> "would require every bookstore to verify the age of every customer at the door and, for minors..."
It's a dumb law, but, devil's advocate - isn't that how porn shops work? And porn shops also sell some non-porn items, too.
This is the difference between standing on a street corner shouting "shit" and taking a shit on a street corner.
The court is generally pretty adept at navigating the difference between "a bookstore that has some spicy books" and "a sex shop that has some non-spicy books".
I guess that makes sense. Thanks.
Most modern social media is the latter, but for trash and propaganda, rather than sex. So why doesn't the court apply the same rule that it's okay to check IDs on entry?
Probably because there are reasonable principles to draw on about withholding access to explicit sexual content from children, but there are no similar principles about trash or propaganda. Trash and propaganda are both pretty clearly within the remit of permitted free speech.
So was porn, until the court just decided it hated the constitution...
Bookstores that carry porn are porn shops. Apps that carry porn are porn shops, and since the app store has apps that carry porn, the app store is a porn shop.
Can you back that up? Basically nowhere else I'm aware of do we draw that kind of expansive categorization. A gas station isn't a book store if they have one rack of books next to all the snacks. A book store isn't an electronics shop if they have a rack of e-readers.
Now apply that logic to the whole of the internet..
You might arrive at an old saying, about what the internet is for.
Airport newsstands used to sell adult magazines, do I buy a bottle of water from a porn shop every trip?
ICYMI Kavanaugh endorsed arresting people because they look brown so I'm not sure why we're putting any faith in the court system.
Laws which are open to abuse are bad laws. Full stop.
The world is very complex. It's effectively impossible to write laws on most topics that perfectly capture all nuance. Which is why we have a judicial system that can look at a law and a situation and say "nope, this law (or this usage of a law) is incorrect". Which is what's happened here, where the court issued an injunction on enforcement of the Texas law.
Yes, first amendment is not absolute.
https://en.wikipedia.org/wiki/United_States_free_speech_exce...
Only the second one is absolute for some reason.
Far from it, but I'd rather not drag things so severely off topic. I'll just point out that you used to be able to mail order some surprising (at least by modern sensibilities) stuff.
Interesting, you think the second amendment is absolute? Can you elaborate on that?
It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
Laws limiting fundamental constitutional rights are subject to "strict scrutiny", which means they must be justified by a compelling government interest, narrowly tailored, and be the least restrictive means to achieve the interest in question. One might reasonably argue even that standard gives the government too much leeway when it comes to fundamental rights.
Age restrictions narrowly tailored to specific content thought to be harmful to minors have often been tolerated by the courts, but something broad like all book stores, all movie theaters, or all app stores violates all three strict scrutiny tests.
I'm interested: the only one that I can think of that has some limitations is the second amendment? Are there others?
As to the first amendment: Although not equal to that of adults, the U.S. Supreme Court has said that "minors are entitled to a significant measure of First Amendment protection." Only in relatively narrow and limited circumstances can the government restrict kids' rights when it comes to protected speech. (Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).)
Why is the second amendment excepted? Nothing in the text says anything different from the others with regards to age.
And don't say "because it's insane for kids to buy deadly weapons" because that doesn't seem to figure into any other part of second amendment interpretation.
Because that's the way our courts have ruled on it.
Nothing more complicated than that. The courts are empowered by the Constitution to interpret the Constitution, and their interpretation says kids can have their rights limited.
True, but the executive and legislator are bound to ignore the courts if their interpretation violates the constitution. The judicial branch for instance can't simply declare that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" means that "Clarence Thomas is god emperor of the US and commands all the armed forces."
If they could interpret the constitution and that was that, then the judicial branch would basically have ultimate power and be exempted from the checks the other branches have on them.
That’s called a constitutional crisis and then gets into bringing guns out to see who’s really in charge.
They could still be impeached by the legislative branch.
The thing authorizing that -- the constitution. So unless the legislative can ignore the "interpretation" for the purposes of impeachment, the court can simply "interpret" the part that you think authorizes impeachment to just mean something like "the meaning of life is 54."
To be honest I am not sure if you are even discussing this in good faith anymore. The idea that the Supreme Court could render impeachment of them null and void and the legislative and executive branches would just be :shrugging-emoji: is a little silly.
Yes, the court’s job is to interpret the law. But the Constitution is not code and the judges are not the CPU. Ultimately, the rule of law will always be dependent on people.
The problem is that I don't believe that the court is arguing in good faith any more. In which case silly interpretations don't seem beyond the realm of possibility.
I'm assured by lawyers of both parties that this is not the case. And since I am not a lawyer their understanding is worth a lot more than mine. But as someone who does have significant credentials in philosophical and scientific reasoning, I can say that legal reasoning is not at all what I am familiar with.
The justices would be jailed by the executive, swiftly, if they refused to acknowledge impeachment.
Yes, exactly, the executive can ignore the court's interpretation, including an incorrect interpretation of impeachment (perhaps interpreted in such a way that impeachment as you know it would be impossible), if it violates the constitution.
The executive cannot ignore the court's interpretation on their own.
Christ, are you in high school? This shit is covered in like sophomore year social studies.
OK so the court can then simply declare an "interpretation" of impeachment that makes it impossible, or meaningless then, or perhaps also interprets any such jailing by the executive as illegal. Since they are the ones that get to decide what the text written in the constitution actually is interpreted to mean and apparently their "interpretation" cannot be ignored.
The court can say whatever they want, but they'd be saying it from jail.
They very much are not bound to ignore the courts. That's not a thing. That's very explicitly not a thing. Why would you think that's a thing?
IIRC didn't the courts empower themselves to interpret the constitution? Nothing in the constitution says they can. Of course, since they interpret the constitution, they can just insert an interpretation that says they interpret the constitution...
yes. IMO one can argue that it was a very reasonable pragmatic decision that set a questionable precedent for branches of the government creating powers for themselves out of whole cloth. There is a LOT of commentary in intellectual circles that hail Marbury v. Madison as some sort of genius decision, and it's quite frankly horrifying.
https://en.wikipedia.org/wiki/Marbury_v._Madison
That didn't happen until 1968 and by that time the constitution was basically toilet paper. The answer is ever since the progressive (and on some occasions, before that) era the constitution was more of a guideline, occasionally quoted by judges much like you can quote the bible to support pretty much anything if you twist it enough.
> since the progressive (and on some occasions, before that)
Wasn’t it the other way around? E.g. the fir amendment was pretty much ignored (barely a guideline) by everyone almost until the 1900s.
Even the founders themselves discarded it almost entirely just a few years after the constitution was ratified..
The Bong hits 4 Jesus case[1] clarified that minors don’t have full first amendment rights since they are compelled to attend school, and government employees can punish them for their speech.
My memory is failing me for the relevant case name but I’m also fairly sure students don’t have full 4th amendment rights, again because they are compelled to attend school and the government employees are allowed to search them at any time
[1] https://en.wikipedia.org/wiki/Morse_v._Frederick
It used to be worse, back in the days. See that case of https://en.wikipedia.org/wiki/Rosemary_Kennedy
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age.
Some of this depends on whether the state has an interest in preventing known, broad harms - say in the case limiting minors ability to consume alcohol.
Conversely, there are no clearly proven, known targeted harms with respect of youth access to app stores (or even social media). What there are, are poorly represented / interpreted studies and a lot of media that is amplifying confused voices concerning these things.
The government doesn't have a compelling state interest in preventing you from downloading any app (a weather app, for instance) unless you provide your government ID first.
> In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
https://en.wikipedia.org/wiki/Strict_scrutiny
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example.
> What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
The Constitution of the US mentions age in a few very specific places, namely the minimum age to run for The House, The Senate, The Presidential seat, and I believe voting age.
I don't understand your point.
The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution.
This is explicitly the case with voting rights, but other than that? While there a contextual limits where age may be a factor as to whether the context applies (e.g., some of the linitations that are permitted in public schools), I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself. Can you explain specifically what you are referring to here?
> I can't think of any explicit Constitutional right where the courts have allowed application of a direct age limit to the right itself.
Right to keep and bear arms -- federally 21 to buy a handgun and 18 to buy a rifle/shotgun from an FFL. Although sometimes you can touch federal law (NFA) and not have such limit -- a 12 year old could buy a machine gun or grenade for instance privately and still be able to buy a federal tax stamp.
Speech - a little looser but the 1A rights of minors in schools are a little bit less than that of staff. It's been awhile since I looked over the cases but IIRC staff had slightly stronger free speech regarding political speech than students (I'll try to dig up the case later if someone asks for it).
There is a difference between what is said in the constitution and what has been declared as a federal law.
For example: meth is very illegal under federal law, and not mentioned in the constitution.
You should stop citing the constitution.
The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
> The controlled substance act, as applied, is insanely unconstitutional. That's part of the reason why they needed to pass an amendment to ban liquor.
The Wartime Prohibition Act says you are wrong. The 18th Amendment was certainly necessary to both make the policy irrevocable without another amendment, and to give states independent power notwithstanding usual Constitutional limits on state power to enforce prohibition on top of federal power, it is much more dubious that it was necessary for federal prohibition.
The Wartime Prohibition Act was passed during the drawdown from World War I and the basis for upholding it was the wartime powers of Congress because of a scarcity of grain from the war.
The last Congressionally declared war was World War II, so if that was supposed to be the constitutional basis for the Controlled Substances Act, there would seem to be the obvious problems that the war was generations ago and nobody is diverting scanty wheat from the food markets to make MDMA.
I just want to make clear, you completely ignored that I answered your questions and instead argued against someone else's tangent about meth (which although the government is unconstitutionally regulating as applied, isn't an explicit constitutional right which was what we were discussing) because they desperately needed to side rail the fact I was right by going on a red herring hunt (indeed, one where I was taken to task for apparently mentioning the constitution on a question that involves the constitution).
The wartime prohibition act, to the extent it regulated intrastate trade -- was also beyond the powers restrained by the 10th amendment. The fact a wartime era court lol'ed their way into regulating intrastate commerce is just another example of the federal government happily steamrolling rights (something they are especially good at around wartimes), but they needed the amendment to keep it up in non-wartime.
----- Re: irishman due to throttling ------
>Ignore meth. Do it again with wire fraud.
The question was about age limits on things that there is an explicit constitutional right of. You don't have a right to meth nor wire fraud. Your argument here doesn't make sense, nor is there an age where meth or wire fraud are legal which again was the question.
Ignore meth. Do it again with wire fraud.
You’re missing the forest for the trees. It’s ok to be wrong.
Daww, edit:
The seed for this thread was:
> It is difficult to square the notional unconstitutionality of this with the fact that the exercise of other Constitutional rights have long been conditional on age. This just looks like another example. > What is the consistent principle of law? I am having difficulty finding one that would support this ruling.
I pointed out that "unconstitutionality" wasn't accurate, because it isn't. You went on about jurisprudence whathaveyou. You moved the goalposts. I suppose I moved with them to try and make my point.
You're confusing different accounts for one another. Jurisprudence is relevant because that's ultimately what determines what is and isn't constitutional in practice. The reality is that at least some of the rights which don't have age exceptions explicitly attached to them are nonetheless restricted by law, said restrictions having been deemed constitutional by SCOTUS. The 2nd amendment for example.
Pedantic, gotcha. Replace meth with wire fraud.
Perhaps if you had examples or decisions to explain what you're talkinh about, you would make your point better?
As is, you are being politely called out as incorrect because you are asserting someone people don't believe and not providing any argument, evidence or justification.
> The interpretation of existing jurisprudence is that age limits on the free exercise of rights is Constitutional in many circumstances regardless of if such limits are not explicitly in the Constitution. This is a simple observation of the current state of reality.
> Those age limits are arbitrary and the justification can sometimes be nebulous but they clearly exist in the US.
I mean, kind of, I guess?
States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong.
> States make their own age-related rules. The states are part of the US. So technically sure, you're right. In practice, you're very wrong
This is wrong. It's particularly wrong in the way that you draw a distinction between theory and practice. It's so wrong that it's backwards.
In theory, the states set age related rules. In practice, they must set them to what the federal government tells them to. This was established in the specific case in 1984 [0] when Congress realised that it could withhold funding to states based on how quickly they agreed with it, and in the general case in 1861 [1] when the United States initiated a war that would go on to kill 1.6 million people after some states asked it only to exercise the powers derogated to it in its constitution.
[0] https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
[1] https://en.wikipedia.org/wiki/American_Civil_War
Even the age at which you can buy various types of guns varies from state-to-state and that is ostensibly a constitutional right assured to all citizens. In Montana, a child is allowed to buy a gun from anybody other than an FFL. If they're 18 they can also buy rifles from FFLs. They can even buy machine guns if they have the money for it. Meanwhile in California, an 18 year old cannot buy even a single shot .22 rifle, they aren't allowed to purchase any gun until they are 21 years old. Imagine if Texas passed a law saying that you don't get your first ammendment rights until you're 21 years old. This is the America we live in.
Have you looked at age-of-consent rules across the various states? Boating license age requirements? How have those two completely unrelated things have-or-not changed over the past 100 years across all 50 states? Age for kids to sit in the front seat of a car? Learn to drive a car? Get a work permit?
States have age-related laws at an insane level. I don't know what you're on about.
> the fact that the exercise of other Constitutional rights have long been conditional on age
Which of those are in regard to the 1st Amendment?
> This just looks like another example.
No, it doesn't.
> What is the consistent principle of law?
The 1st Amendment.
> I am having difficulty finding one that would support this ruling.
The judge stated it clearly. And if there's an inconsistency then it's other rulings that violate the 1st Amendment that aren't supported, not this one.
Correct. If a right "shall not be infringed", then it shall not be infringed. Period. End of discussion. That right is inviolate. Any obstruction to its exercise is plainly anti-American.
If someone set a bomb using a speech recognition algorithm looking for specific elements of political speech, and I knowingly detonated it with that kind of political speech, would the act of my political speech be protected speech?
Is the act of shouting "fire!" in a crowded theater protected speech?
Surely there should be some limits on what constitutes protected speech.
Is this a troll post? It's taught in Constitutional Law 101 that shouting "fire" in a crowded theatre is, in fact, Constitutional.
The source of that quote was a war-time judge who used that analogy in his ruling in 1919 against people handing out anti-war flyers. A ruling that was overturned in 1969.
It was precedent for 50 years.
That precedent died 56 years ago. It's been dead for longer than it even existed.
"Is the act of shouting "fire!" in a crowded theater protected speech?"
Strawman. That is not speech in the same way that yelling or crying is not free speech.
The first one is the same strawman. Making the word milk a trigger mustn't milk illegal.
Shouting fire in a crowded theater was never literal, it was an analogy for speech that runs counter to the government's desires, namely protesting the draft to fight in some pointless inhuman European meat grinder, thousands of miles from home.
Anti-war protests were what was meant by "shouting fire in a theater". That's what our government was trying to ban.
It's certainly not a strawman when it's an oft repeated argument going back to Oliver Wendell Holmes' dictum in Schenck v. United States (and even further, as Holmes didn't invent this argument). The argument doesn't change if it's "There's a fire! Run, everyone!" -- and saying "that isn't speech, it's an emotional trigger" would be an intellectually dishonest evasion--lots of actual true blue speech triggers emotions.
P.S. I won't engage further with people clearly not arguing in good faith.
There it is. Actual true blue speech triggers emotions.
Speech communicates ideas. It is mostly opinions. If you state something as fact, when it isn't, it is libel. As such, saying "there is a fire" in the theater is not speech, it is an exclamation.
If you aren't for free speech, then yes, yawning is speech.
You're seriously using the cliche used to justify jailing objectors to World War One unironically?
Note that I didn't say anything about the 1st Amendment having no limits, nor does the Constitution say that--someone else said that I was "Correct" but put words in my mouth.
As for that "shall not be infringed" wording that is in the Constitution, there's a whole lot of sophistic, intellectually dishonest ideological rhetoric around it. The historical record shows clearly the Founders did not mean by their language what many people today insist that it means--for instance, they passed a number of gun laws restricting their use, and the original draft of the 2A contained a conscientious objector clause because, as the opening phrase indicates, "keep and bear arms" at that time referred to military use (and "arms" included armor and other tools of war; it was not a synonym for "firearms"). And some of the modern claims are absurd lies, such as that the 2A was intended to give citizens the means to overthrow the government, or that "well-regulated" doesn't mean what it does and did mean. George Washington was dismayed by the Articles of Confederation not giving him the power to put down Shay's Rebellion ("Let us have a government by which our lives, liberties, and properties will be secured"), and one of his first acts after the Constitution was ratified was to use the militia to put down the Whiskeytown rebellion.
https://www.politico.com/news/magazine/2022/06/26/conservati...
All of us in the EU could learn something from this judge's ruling and from the Constitution. The EU is on the fast-track to turning into a vast surveillance state the way things have been going (the increasing rise of arresting people who post mean things on the internet, Chat Control, age restrictions now rolling out in Denmark).
We love to regulate here in the EU and now that love of regulation is being weaponized against its own people.
This protection is not provided by judges or the Bill of Rights. It’s provided by the attitude and behaviours of all Americans. If enough Americans start treating 1A as conditional, the court decisions will slowly start reflecting that. The system won’t protect the people from themselves.
Yeah, but slowly is an understatement. Scotus judges serve until death, and they're appointed rather than elected. Even then, they're allowed to make very unpopular decisions.
Judges are struggling to find the analogies known to them from the world of 70's. Apps are not like books only. They are like movies, sports, tools, postal mailbox, pet, friend, bank, money, shop, cab and anything you can imagine. When movies require age-restriction, apps can do so too.
And which movies, when broadcast on TV (i.e. viewed inside people's homes), verify the age of everyone watching before continuing? Your analogy is just as flawed.
When movies are broadcast on TV, they must first be censored according to the FCC's rules. Of course this only applies to broadcast, not cable, but cable doesn't get broadcast into people's houses without them signing up for it.
> cable doesn't get broadcast into people's houses without them signing up for it
Neither do apps, so it seems apps over an ISP are more equivalent to adult content on cable tv, which do not require age verification to watch.
Age gates at the App Store level aren't a narrow restriction, they're a universal checkpoint
Not defending the law but questioning your interpretation.
Does requiring by law an age of 21 to enter a bar violate freedom of assembly? Lots of important political events and discussion historically in the US have occurred at taverns.
I hope we can use the First Amendment and freedom of assembly to tackle these ID age verification (read: 1984 surveillance) laws. I don't have faith that this will work.
We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
> We need to amend the constitution to guarantee our privacy. It should be a fundamental right.
As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee - that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The challenge is that courts repeatedly and routinely support and protect the government in it's continual, blatant violation of our 4A protections.
This has allowed governments at every level to build out the most pervasive surveillance system in human history - which has just been waiting for a cruelty-centric autocrat to take control of it.
And for the most part, we have both parties + news orgs to thank for this. They've largely been united in supporting all the steps toward this outcome.
> As far as government intrusion into our privacy, it's addressed by the 4th Amendment's guarantee that the right of the people to be secure in their persons, houses, papers, and effects and that our rights against unreasonable searches and seizures, shall not be violated.
The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
https://news.ycombinator.com/item?id=46329186
Clearly, those protections have already been violated.
> The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history. Clearly, those protections have already been violated.
Absolutely. And to keep court-sanctioned violations from getting challenged, a state can utilize a number of tactics to shroud the methods in secrecy. This makes it very difficult for the violated to show standing in a challenge.
The state has nearly every possible advantage in leveraging gov power against the public.
>The Pennsylvania High Court recently ruled that the Pennsylvania local police don't need a warrant to access your search history.
How does this work? Does that mean if Pennsylvania police ask google nicely for it, then google isn't breaking the law in complying? Or that Google has to hand over the information even without a warrant?
You don't understand that news item. The police didn't search a specific person's account, they asked Google (who gave it to them voluntarily) anyone who searched the victim's address in the past week. Nothing unconstitutional about that.
It seems like the equivalent of reading everyone's journals every home in the entire nation. Cartoonishly unconstitutional.
But yes, I'm aware of the Third Party doctrine ruled on by judges whose conception of people making phone calls involved an individual talking to another human being (a.k.a. an operator) to connect you to who you wanted to talk to.
A practice antiquated when the ruling was made and a bygone relic by this point.
But in the absence of a warrant it _ought_ to be.
Then your complaint should be with google for handing it over without a warrant.
Sure, I also dislike corporate policy that doesn't require a warrant for such things. But at the end of the day that is their choice.
My complaint is that Google should not have been permitted that choice in the first place. The entire sequence of events - from requesting the data without a warrant through to handing the data over without a warrant and any following data mining that was done with it should have been forbidden on constitutional grounds. Both parties ought to have been in violation of the law here. We need to fix the gaping hole in our constitutional rights that the third party doctrine represents.
The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities who are more than happy to consent away their access into our effects.
Do you mean those who rent their homes?
I rented for a long time. I bought a house. None of my house, papers, or effects are owned by anyone but myself. I guess a credit union owns the mortgage, but they haven't and won't sell it.
To those who will jump to disagree with me about the credit union selling my mortgage: they won't. They don't engage in that market, never have.
> None of my house, papers, or effects are owned by anyone but myself.
Do you self host your own email? No? Those are "papers" that your email hosting provider can consent to providing law enforcement access to without a warrant.
Do you use search engines? Your search history is in the same boat with the search engine company.
Don't use a VPN? All of your internet traffic is in the same boat with your ISP
You use a VPN? All your internet traffic is in the same boat with the VPN.
The list goes on and on. It is almost certainly true that some company has private information about you that they can turn over without a warrant.
You forgot “houses” there, boss.
You forgot to respond to anything except the "houses" part of this.
It's obvious what GP and others are saying - that the concept of things like "papers" and "effects" are no longer as concrete as they used to be. What used to be physical letters stored in one's home are now emails stored on any number of servers.
> Please respond to the strongest plausible interpretation of what someone says, not a weaker one that's easier to criticize.
https://news.ycombinator.com/newsguidelines.html
Oh, sorry. None of my papers or effects are in jeopardy either.
Amazon's echo and other such IoT devices do extend this to "houses" but isn't quite as ubiquitous.
My house, papers, and effects aren’t not tied to whatever you’re calling out about the internet, not in the sense you’re insinuating.
You’re conflating ideas to make a point. I admire the effort, you’re just not correct.
> You’re conflating ideas to make a point
I am talking specifically about the ideas you are disputing:
>> partially signed off to corporate entities who are more than happy to consent away their access into our effects.
I haven't conflated anything. You may be confused and think we're talking about ownership or physical access though.
Renters are one (large) category. No wasn't referring to mortgaged houses, iiuc those belong to the owner, the lender merely maintains certain rights to reposses in the case of a default.
I was more referring to the average US resident or American who agrees to broad terms and conditions with, their ISP, Microsoft 1 drive, Roomba of the year, microphoned smart TV, email provider, cell service provider, etc. Many of which are essential for navigating modern society.
I think he meant things like his personal notes and files stored in an app like Evernote, which law enforcement can request copies of. I don't like the idea of someone reading my private notes...
Me either.
You can write them down on paper.
If we all acknowledge that the internet is a beautiful disaster that shan’t be trusted, which it always has been and always will be, we can all collectively get over ourselves about privacy on the internet. “Hey world I went overseas for vacation/holiday! I cooked this amazing dinner! I’m cheating on my SO using an online chat app!”
Maybe stop doing all 3 of those things. I can’t tell you how liberating it’s been since I got off all social media in ~2008. It’s super easy to be very private if you so choose. Having any kind of internet presence is a voluntary sacrifice of privacy.
> The other challenge is that in the modern era the houses, papers, and effects of most people have been partially signed off to corporate entities
There are two issues here, each harms us on it's own and both are intertwined toward our detriment.
The first is the deeply problematic 3rd Party Doctrine with established that we lose our rights when a 3rd party has control over our private content/information. What few stipulations there are in the precedent are routinely ignored or twisted by the courts (ex:voluntarily given). This allows governments to wholly ignore the 4th amendment altogether.
The second is the utter lack of meaningful, well written privacy laws that should exist to protect individuals from corporate misuse and exploitation of our personal and private data.
And even worse than Governments willfully violating our privacy rights (thanks to countless courts) and worse than corporations ceaseless leveraging our personal data against us - is that both (of every size) now openly collaborate to violate our privacy in every possible way they can.
Between AI improvements, laws like this and Telly, we are a few steps away from the telescreen.
(I saw a Telly recently. This device should be terrifying, but "free" makes people make weird choices.)
That is exactly the case for movies, yes?
Movie theatres require a chaperon for minors for R rated films? (And theatres often block some ages entirely.)
There is no law mandating this, theaters self-regulated. Movies don't have to be rated and anyone can watch them, as per the law.
That's a fundamental difference than the heavy handed approach of using the state to mandate KYC laws to post on the internet.
False analogy given by this federal judge. App stores are gateways to social environments and unknown or future content. Every book in a bookstore can be verified because the content can be known and audited. Regardless of opinion on the root issue, this judges statement aligns books with the Internet and they are absolutely not the same.
> Every book in a bookstore can be verified because the content can be known and audited
A bookstore with a single employee can no more verify the content of every new book or periodical put up for sale than Apple can verify all new content on the internet.
Books and periodicals come out far, far too quickly for an independently owned bookstore to read first. Never mind new books which have set release dates where bookstores might not get advanced copies for books sold on consignment.
That’s an argument that sounds convincing in principle, but in reality I can walk into any independent bookstore and find it’s not filled with porn and AI slop, so clearly there is a successful vetting process going on. Namely, the publishers vet the books then the bookstore owner only has to vet the publishers. A proof of concept internet equivalent is if I scrape a bunch of trusted YouTube channels onto a NAS and give my kids access to that NAS but block YouTube access otherwise.
This hypothetical independent shop you walk into is not filled with slop because it's curated; the store is intentionally keeping its inventory to a manageable level so that it can be screened first.
If the owner stopped caring and just decided to let any book that passed through the automated "does this book immediately and actively harm the customer?" screening machine then you'd have something that approximates the app stores.
Hello, it's me, your billionaire friend, Broizoz, take a look at my book store.
[Image with a bookstore filled with AI slop]
Yes, but you can't stop eight year olds from grabbing a James Patterson or Stephen King novel from the shelf. Their parents should, and some librarians might throw a moral exception to their choice, but if they wanna read It, they're gonna read It.
Enforcing anything other than that is a huge 1A violation IMO.
"you can't stop eight year old from ..."
Phrasing this as "you" versus "a second party to the child" involves me, where I originally did not present a statement that would give the impression that I'd be involved. Keep me - "you" - out of it. I'm simply making fun of this analogy.
Let's not go down the semantic argument route and pretend like the impersonal you is not a thing in the English language.
With that argument you could argue for age gating wifi access and mobile data.
Bookstore and libraries are environments where content is known. I am not making any sort of argument that identifies internet access as something to age gate.
Correct analogies should be used to present the most fool proof argument.
Who cares if you don't like his analogy? His point is that this is a violation of the 1st Amendment. Which, by the way, does not mention anything about content being known or not.
I should have contacted you, Refreeze98, prior to posting my comment that contained far less of an abstraction than you've condescendingly supplemented.
Have you read the opinion?
Yes and I am addressing the quoted remark above which stands out.
As a UK subject, with a government that has begun implementing the online safety act, prosecuting people for tweets that clearly weren't inciting violence and getting rid of jury trials for cases with fewer than five years sentences, I look on with envy at your constitutional protections of the individual.
The problem interpreting the intent of that tweet is that Lucy Connolly herself admitted to authorities she was inciting violence so becomes hard to build a defence at that point. Incitement isn’t first amendment protected in the US either https://codes.findlaw.com/us/title-18-crimes-and-criminal-pr...
I should be clearer and provide references etc, I was refering to this: https://freespeechunion.org/labour-reported-me-for-racial-ha...
The major part of this case is that without a jury trial he'd probably have had zero chance of being cleared. Countless others were persuaded to plead guilty to avoid a long time in prison and then were given long sentences. h he was strong enough not to give in.
You are right, freedom of expression in the US doesn't cover inciting violence, but it has an high bar, imminent lawless action:
https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
Yes in Lucy Connolly's case she admitted to inciting violence, though I'm not certain what she did justifies a 31 month sentence.
American constitution is underappreciated. It ensures peace but faces profoundly undeserved hatred in return.
> we are concerned that SB2420 impacts the privacy of users by requiring the collection of sensitive, personally identifiable information to download any app, even if a user simply wants to check the weather or sports scores.
Avoiding the collection of user data in the first place (if it's possible) is exactly the correct approach to user privacy.
Soo the strongest form of privacy protection isn't better storage or better policies, it's simply not creating the data in the first place
Instead of fixing consequences, eliminate the cause? It sounds almost like common sense.
I think most laws should look reasonable from the common-sense viewpoint. And when they don't, there should be a serious explanation.
Privacy legislation and infrastructure are both designed to eschew common-sense. It's how the fed gets away installing backdoors in iOS and Android: https://arstechnica.com/tech-policy/2023/12/apple-admits-to-...
Beautiful :-\ But it's not a backdoor on devices, it's eavesdropping push notifications when they pass Google's or Apple's servers.
Corollary: a secure notification should consist of a link with a random number token which opens the real message via an authenticated API on an encrypted channel. Would look a bit weird though. iOS at least has silent notifications for that.
No company in the US has any choice when Federal, State, or local officials get a court warrant and want data on your server.
That's why the surveillance capitalism business model is so dangerous. If you horde user data to make ad sales more profitable, you put your users at risk.
If app developers want to pass customer data in notifications, the data they are passing should be encrypted so that Apple (or Google) doesn't have access.
You can't hand over what you can't access.
As they say in Apples developer docs:
> Important
Don’t include customer information or any sensitive data, like a credit card number, in a notification’s payload. If you must include customer information or sensitive data, encrypt it before adding it to the payload.
You can use a notification service app extension to decrypt the data on the user’s device.
https://developer.apple.com/documentation/usernotifications/...
"We kill people based on metadata"
- Former NSA General Michael Hayden
Yes. It's more secure to have your website simply not require the user's SSN than to implement the best security in the world to handle their SSN.
What also gets glossed over is the privacy tradeoff: to "protect minors," you end up collecting more sensitive data about everyone, including adults downloading trivial apps
That’s exactly why they keep pushing these laws.
in some people's eyes, that's a feature, not a bug.
I spend well over a month now on the topic to implement the different half cooked APIs into our apps. The chance that this gets overturned or blocked was high but we had to race anyways. I’m curious what this means for similar legislations in others states line Utah and Louisiana that where planned to get into effect later this year.
I very much saw the irony that Texas of all regions tried to restrict the Wild West that is the digital App Store landscape. I think something needs to be done but the implementation proposed is not just problematic but also downright technically impossible. Our first implementation simply failed open for all kinds of errors. Reading the AppStore Age Verification APIs (except Apple) they tried to make this an app problem ala: Playstore is not up to date. Show a message to the user yadayadayada… There so many reasons why this call can go wrong. And the apps won’t start blocking all users just because this call failed. Not to speak about the issue that just for Texas we had to implement said call globally. Because the law states that a an account created after 1.1.26 of a Texas “resident” needs these additional checks. Well let’s see what happens next.
My guess is that Utah\Louisiana will either pause, copy-paste the same approach and hit the same wall
I don't understand why it feels like out of the blue there is suddenly a rampant and somehow worldwide effort left and right to increase censorship, age verification, etc on the internet. Also I don't get why it seems like so few people care in comparison to years ago during the whole SOPA/PIPA thing where there seemed to be widespread and significant vocal opposition.
On the age verification thing the only reasonable proposition i've heard would be a feature that allows parents to set some setting that gives a device users age or age range for mobiles and tablets. I think this covers a reasonable percentage of use cases if your goal is actually protecting kids and not just using that as deceptive cover to sneak in widespread surveillance laws. A simple setting that says for example this ipad user is 10-13yrs is privacy preserving enough and would not negatively impact adults and because it would be coming from the device itself would actually be harder to get around vs VPN's or spoofing IDs, etc.
The idea of trying to address all devices in all scenarios is absolutely preposterous in my opinion.
it's a mixture of
1. easy wins for politicians in conservative areas of "won't somebody think of the children?!?!" so they can look like they're doing stuff to stick it to big tech while appealing to their voters' sensibilities
2. wanting to de-anonymize the internet as much as possible in the name of CSAM and anti-terrorism but is actually about wanting unchecked surveillance. the same reason we have to bang the drum against anti-encryption laws that they try to pass every several years
I wonder why Texas did not start by targeting NSFW / porn apps specifically, like other states.
I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
The app stores already block porn on their own initiative.
> I also wonder why smut literature (the best selling category of books on Amazon) seems to get a free pass.
It's popular with women and basically invisible to men.
There are plenty of NSFW oriented apps, especially in the AI category.
> It's popular with women and basically invisible to men.
Mostly true, and this might be a reflection of reality, but certainly not a justification.
And being long-form written text, likely invisible to minors as well.
It's extremely visible to teenagers. They're one of the main audiences for booktok.
Text has always been treated differently than images or video, partly for historical reasons and partly because regulating it runs straight into classic First Amendment landmines
Probably because some apps aren't NSFW apps but have it (Reddit)
Text just fundamentally isn't nearly as graphic as images/video.
Write the most sexually disturbing sentence you can come up with and it's going to be rather meh and possibly quite comical. And any of the gravity that it does have comes from the reader's ability to generate the visuals themself which is mostly out of reach for children who don't have the experience to necessarily know what's even being described.
Because people were so sick of their shit, and they already got their asses beaten so hard that they turned a fundamentalist city into an atheistic one. Banned in Boston used to be a thing. Boston itself got sick of that puritan bullshit.
They know that re-litigating that is a road to ruin because 'artistic merit' is so well tread a ground in literature.
The only reason the earlier age verification laws were upheld were because they narrowly targeted porn. This is an entirely unsurprising outcome.
I do not see how this is an argument. If porn can be narrowly targeted, why apps can not be targeted narrowly as well?
It seems to be more about harmonizing Texas law (SB2420) under the constraints of federal law (1A), so we will likely to see this question all the way to the USSC.
Porn is a category; apps are a concept
Like age laws for vape pens vs age laws for shopping.
"If porn can be narrowly targeted, why not books?"
You cannot narrowly target a medium.
> "The Act is akin to a law that would require every bookstore to verify the age of every customer at the door"
Presumably for the same reason why libraries can not be targeted narrowly
Apps aren’t a narrow target
wait, so its not affect apple users ????
Google just sent me a email today that Google would push forward
I just received an email from Google Play Developer today morning that they will not be activating the age verification APIs (they will throw an exception) because of the injunction, so there's nothing Apple specific about this.
> they will throw an exception
Reminds me of HTTP error code 451, Unavailable For Legal Reasons.
I can imagine some future programming language with a LegalRestrictionException.
I completely agree with the federal judge's rationale and the decision
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So, the law seems broken as judges question and interpret a law as unconstitutional. If every judge across the country does this, we can dismantle entire law. Awesome. The power of capitalism and platform monoply is at full display.
Judicial Authoritarianism.
Not so fast partner, the Supreme Court has upheld as Constitutional, routine and regular administrative requests including documentation to prove age and income. Otherwise, we would have a paper tiger Income Tax.
And i just got a ton of apps updated and ready for it…
Thanks, Obama
If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
Apparently, these are not quite equivalent. Like books and weapons, like books and alcohol, etc.
The equivalence is that children have first amendment rights (see Tinker v Des Moines) and speech delivered by the internet is still speech.
Good point, but judge's reduction it to a book equivalence is misleading and weakens the judgement.
Porn may provide a suitable model: not all movies need age verification, so those can be viewed at any age. Some movies, however, do require age verification. Similar age ratings could be applied to apps. For example, Facebook only after 18 regardless of parent's approval.
> judge's reduction it to a book equivalence is misleading and weakens the judgement
Good thing that isn't what happened. It is called an "analogy" and is not a factual statement of equivalence.
There is no law that mandates age verification for movies, any type of rating, or preventing anyone from watching any movie.
The MPAA rating system and adhering to it is completely voluntary.
Porn has always been treated differently than other speech that is why most age verification laws want for it first. As for your other examples those are all technically voluntary, as it’s unlikely a government mandate that nobody under 17 can watch an R rated movie would pass constitutional muster. Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
> Parents can restrict what speech their kids say or hear but the government generally cannot in the US.
Good in theory, but practically impossible. Peer pressure is too high for parents to be a significant barrier. If you were successful, please share how you did that.
The question isn't whether your or my proposed regime is practical. The first amendment precedent is clear that the government is not allowed to restrict children's speech any more than it is adults' speech aside from some narrow and tailored exceptions.
Right. So SB2420 and the federal court judgment are the steps in the process to narrowly tailor another exception. Likely driven by the practical reasons mentioned earlier.
"Cannot" in the US means no route to enforcement in that context. Distribution of NC-17 content to minors was never directly illegal, but doing so anyway would open the door for potential legal issues under the more broad umbrella of laws that cover "distribution of lewd or obscene content to a minor" which is more of a "do so and find out" concept of enforcement versus specifically identifying NC-17/X content by law.
> If the judge finds that apps and books are so equivalent, then letting the apps require age verification should do no harm -- everyone underage or privacy-concerned will simply go to the bookstore or a library. Right?
That is obvious harm.
This is only an obvious lack of equivalence
I have no idea what you're on about but the point is this chills speech, and infringes on the rights of everyone involved, not just underage people.
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