Building Age Verification Systems: Compliance Strategies and Defenses

Course Description

Online platforms face a compliance quagmire over age assurance: laws like Texas’s App Store Accountability Act and the state Age-Appropriate Design Code Acts push companies to verify or infer user age, while the First Amendment and privacy laws (including biometric and health privacy statutes, including BIPA, Texas’s CUBI, Washington’s My Health My Data Act, and Colorado’s 2024 biometric amendments) limit how verification can be achieved. This program covers both sides of this issue: (1) how to choose an appropriate age assurance method for the jurisdictions a company is subject to and the audience it serves, including considerations for consent flows, vendor contract terms, and retention standards, and (2) defending the pushback that may follow, touching on considerations for damages exposure under the 2024 BIPA amendment, class certification strategy, extraterritoriality, consent, and arbitration defenses.

Principles

• Start with a jurisdiction- and risk-specific necessity analysis.
  • Age assurance is not a one-size-fits-all requirement. Determine when age verification is legally required, what level of assurance is appropriate, and which jurisdictions and user populations are implicated before selecting a technology or vendor.
• Balance compliance with constitutional and privacy constraints.
  • An age-verification system must account for the First Amendment, state privacy laws, biometric laws, and consumer-health-data laws. The legally safest solution is not necessarily the most technically robust one; companies should seek the least intrusive method that reasonably accomplishes the compliance objective.
• Build age assurance around privacy-by-design.
  • Consent, data minimization, purpose limitation, retention/deletion, security, and vendor controls should be designed into the system from the outset. Particular attention should be paid to biometric and health-related data, where statutory damages and other liability can be significant.
• Treat architecture and vendor selection as legal decisions, not merely technical ones.
  • Different approaches—such as self-declaration, document verification, facial age estimation, third-party tokenization, or platform-level age signals—create different accuracy, privacy, contractual, and litigation risks. Vendor agreements should address data ownership, permitted uses, retention, deletion, security, compliance obligations, indemnification, and audit rights.
• Design the system with litigation and defenses in mind from day one.
  • Companies should anticipate challenges involving consent, statutory damages, class certification, extraterritoriality, arbitration, and other defenses. Documentation of the company’s rationale, consent process, data practices, and proportionality analysis can become important evidence if the system is later challenged.

Syllabus

• Age Assurance: When Is It Necessary
• Constitutional Considerations
• Comprehensive State Privacy Laws, Biometric-Specific Laws, and Consumer Health Data Laws
• Evaluating Age Assurance Architectures
• Building Privacy-by-Design: Considerations for Consent, Data Use and Retention, Vendor Contracts, and more
• Potential Defenses