SB 5708 (Age Verification) testimony

I wasn't able to testify at the first round of committee hearings on SB 5708. So even though the next hearing at the Ways & Means committee was focusing on the fiscal aspects, I decided to take the opportunity to let legislators know about my concerns with the bill and did the same with the House Appropriations committee for the companion bill HB 1834). My goals here were to call more attention to some of the many issues with this bill (which had already been raised by the ACLU of Washington and others, but nobody had taken a technical focus yet) and lay the groundwork for future communications with legislators before upcoming votes.

My position was OTHER for tactical reasons. For one thing, a wave of conservative activists were taking a CON position because they wanted the bill to be even more hostile to LGBTQ+ youth, and I didn't want legislators to think I was on the same side as them. Also, it was clear that the committee would advance the bill (and they did), so I phrased my criticisms as needed improvements.

UPDATE, April 2: After passing the Senate, SB 5708 didn't get a hearing in the House Consumer Protection and Business Committee – and so died for the session. Huzzah! But, I'm sure it'll be back next year.

Dear Chair Robinson, Ranking Member Gildon, and members of the Senate Ways & Means committee,

I'm Jon Pincus of Bellevue, a technologist and entrepreneur, and founder of The Nexus of Privacy. My position on SB 5708 is OTHER.

Protecting' kids and teens' safety online is incredibly important, and I applaud the bill's protection of minors' privacy as well as most of its other elements. The fiscal note's proposed allocation of $470,000 for the biennium is certainly appropriate.

However, the bill as written also has some problematic language that risks impacting LGBTQ+ youth and people seeing reproductive healthcare, so needs to be improved before passing it. I realize that this is beyond the scope of Ways & Means' focus on the fiscal aspects of the bill, but wanted to call your attention to the need to improve the bill as it goes forward.

For example, the current language for the age estimation requirement leads to the kinds of security and privacy risks described by the Center for Democracy and Technology, the Internet Society and others in their joint amicus brief to the Supreme Court in Free Speech Coalition v. Paxton [1]. While I greatly appreciate Sec. 2(2)'s limitations on secondary uses of the data collected for age estimation, the underlying problems remain. The brief has a detailed discussion of how a non-retention requirement (similar to that in 2(2)) is insufficient to address the risks. In addition, the bill as written does not restrict sharing information gathered for age estimation purposes with a third party age estimation service based in a state where accessing information about reproductive health care and/or gender-affirming care is criminalized -- at which point law enforcement can access this data to target LGBTQ+ youth -- as well as anybody seeking abortions or exploring trans or non-binary identities.

And as two of the brief's authors note in a post on the Internet Society blog[2] "Apart from the practical challenges of age verification technologies and their privacy and security risks, users may be less willing to access content that requires age verification, fearing that their activity could be monitored." While I know that this is in no way the intent of the bill's authors, this very justifiable fear could in practice restrict teens' access to LGBTQ+-related content or health information.

So, after advancing SB 5708, please work with your colleagues to address these (and potentially other) problems with the current language of the bill.


[1] https://www.supremecourt.gov/DocketPDF/23/23-1122/326510/20240920161551554_23-1122%20Amicus%20Brief.pdf
[2] https://www.internetsociety.org/blog/2024/09/texas-mandatory-age-verification-law-will-weaken-privacy-and-security-on-the-internet/