The Case for App Stores to Age Gate Harmful Online Products
Joel Thayer*
Today’s digital age requires parents to fend off a tech-induced health crisis, contending against the allure of products engineered by the most powerful corporations in history to be maximally addictive to kids. The concerns with respect to online harms are very well documented. Indeed, there are seemingly countless studies, congressional hearings, and lawsuits all pointing out the unique impact that tech services have on childhood development and their mental health.
The question resides on what to do about it given that it is unlikely that tech companies will proffer any genuine solutions to quell the concern. Worse, large tech companies, such as Apple, Google, Amazon, and Meta, may even be intentionally perpetuating the problem.[1]
Given this, a government solution is necessary even with various online child safety laws on the books. And, indeed, states have been the pointed tip of the spear on that front. Most of the state-based solutions impose safety measures on platforms. However, recent attempts to impose restrictions on kids’ use of addictive online products, like social media, have been thwarted by courts for being too broad or vague making them liable for swallowing up protected adult speech in its wake.
Courts have prescribed a remedy to address that concern—age verification. But this too has created yet another problem for legislatures because, even when applying such age-verification requirements to websites, courts have still exerted significant reticence. As the Supreme Court held in Reno v. ACLU, the issue with the government imposing its stated age-restrictions is that the platforms had “no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms.”[2]
NetChoice’s—a trade association representing the largest tech companies—challenge to California’s child privacy law demonstrates the problem. The law in that case would, in part, require the websites to age-gate their services. Generally, the California district court was skeptical that websites could perform such a measure while also avoiding a chilling effect on adult speech. The Court wrote that the “steps a ‘business would need to take to sufficiently estimate the age of child users would likely prevent both children and adults from accessing certain content.’”[3] This led the Court to find that such measures would “appear likely to impede the ‘availability and use’ of information and accordingly to regulate speech.”[4]
However, a district court in Arkansas gave us a path forward on how to avoid this obstacle—go through the app stores. When issuing his opinion granting NetChoice’s preliminary injunction to stay Arkansas’s social media law’s enforcement, Judge Timothy Brooks noted that:
iPhones and iPads empower parents to limit the amount of time their children can spend on the device, choose which applications (e.g., YouTube, Facebook, Snapchat, or Instagram) their children can use, set age-related content restrictions for those applications, filter online content, and control privacy settings.[5]
With that guidance, the position of this paper is that app stores should be responsible for age-gating most of these services. The reality is that almost all aspects of the digital ecosystem go through two companies—i.e., Apple and Google. Apple and Google have leveraged their extraordinary market power to control every aspect of the app economy.
That’s why the App Store Accountability Act[6] (the “Act”) that states, such as Texas, Utah, and Louisiana, have enacted may provide a meaningful solution to this underlying problem. Here, I discuss the policy and legal justifications for the Act and why it appears poised to be a solution that will survive constitutional scrutiny, especially with respect to the First Amendment.
Please click here to read the full piece.
* President of the Digital Progress Institute. The author’s organization help design the App Store Accountability Act’s legal and policy framework.
[1] See e.g., Aaron Tilley, Apple’s App Store Puts Kids a Click Away from a Slew of Inappropriate Apps, Wall St. J. (Dec. 22, 2024), https://www.wsj.com/tech/apples-app-store-puts-kids-a-click-away-from-a-slew-of-inappropriate-apps-dfde01d5 [perma.cc/7FB2-5L6C]; see also Joanna Stern, How Broken Are Apple’s Parental Controls? It Took 3 Years to Fix an X-Rate Loophole, Wall St. J. (Jun. 5, 2024), https://www.wsj.com/tech/personal-tech/a-bug-allowed-kids-to-visit-x-rated-sites-apple-took-three-years-to-fix-it-17e5f65d [perma.cc/4JDK-59QJ].
[2] 521 U.S. 844, 855 (1997).
[3] NetChoice v. Bonta, 692 F. Supp. 3d 924, 945 (N.D. Cal. 2023), aff’d in part, vacated in part, 113 F.4th 1101 (9th Cir. 2024).
[4] Id. at 946.
[5] NetChoice v. Griffin, 2023 WL 5660155, p. *7 (W.D. Ark 2023).
[6] S. 1586, 119th Cong. (2025).