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Mississippi’s Age-Verification Digital ID Law is Declared Unconstitutional

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A Mississippi state law (introduced as House Bill 1126) that, among other things, requires platforms to implement age verification, has been declared as by and large unconstitutional by the US District Court for the Southern District of Mississippi.

The law was challenged by Big Tech trade group NetChoice in the NetChoice v. Fitch lawsuit. As the law was to come into force on July 1, the plaintiff asked for a preliminary injunction to prevent enforcement.

This has now been granted in part and denied in part by the district court, which found that “a substantial number, if not all, of H.B. 1126’s applications are unconstitutional judged in relation to its legitimate sweep.”

We obtained a copy of the decision for you here.

Observers now expect to see how the ruling might satisfy the – apparent – direction the Supreme Court is giving to lower courts, or affect its own future decisions.

Related: The 2024 Digital ID and Online Age Verification Agenda

Meanwhile, the Mississippi law is yet another in a series of legislative efforts introduced under the banner of protecting children from predatory behavior online. As summed up by the court, one of the bill’s sections requires “all users” – adults and children – to verify their age.

This would be necessary to create an account, on what is referred to as non-excluded internet services, while another provision calls for parental consent in case a minor is opening that account.

“This burdens adults’ First Amendment rights, and that alone makes it overinclusive,” is how the court explained its ruling against age verification.

Meanwhile, the legislation also sets limitations on the data the relevant online services can collect. In addition, platforms are required to make “commercially reasonable efforts to develop and implement a strategy to prevent or mitigate the known minor’s exposure to harmful material.”

The data collection provision was not contested in the lawsuit, and so the court opinion issued this week does not deal with that – while it grants motions for a preliminary injunction concerning other provisions, as filed by NetChoice.

The court – unlike some observers, who warn about the consequential harmful effects of such efforts – sees nothing but good intentions behind bills like H.B. 1126, but is critical of the way it (vaguely) delineates its own scope and even the definition of a digital service provider.

In addition, the court cites the lack of specificity concerning how tech platforms would go about ascertaining somebody’s parental status, and as in general being “either overinclusive or underinclusive, or both.”

The case is now expected to move into the appeals stage with the Fifth Circuit.

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