Jun 27 2025

Supreme Court upholds Texas demand for ID for Web browsing

In its worst decision ever on demands for ID, the Supreme Court today upheld a Texas law that requires all visitors to some websites to provide the site operator with evidence of their identity and age.

In an opinion by Justice Thomas, six Justices found that requiring ID for age verification as a condition of viewing certain websites only “incidentally” burdens the rights of adults.

The majority reasons backward from the presumed legitimacy of ID requirements in other contexts, such as buying tobacco, that (A) weren’t at issue in this case, and (B) more importantly, don’t involve the exercise of First Amendment or any other rights:

Requiring proof of age is an ordinary and appropriate means of enforcing an age-based limit on obscenity to minors. Age verification is common when laws draw age-based lines, e.g., obtaining alcohol, a firearm, or a driver’s license…. Applying the more demanding standard of strict scrutiny would call into question all age-verification requirements, even longstanding in-person requirements.

As the dissent by Justice Kagan (on behalf of herself and Justices Sotomayor and Jackson) points out, this amounts to deciding on the desired outcome, and then adapting the criteria (in this case, the level of scrutiny applied to the law) to produce that result.

In rebuttal to the dissent on this point, the majority opinion wrongly claims that in-person demands for ID are “uncontroversial” and have never been challenged in court:

Finally, the dissent claims that we engage in “backwards,” results-oriented reasoning because we are unwilling to adopt a position that would call into question the constitutionality of longstanding in-person age-verification requirements. Not so. We appeal to these requirements because they embody a constitutional judgment—made by generations of legislators and by the American people as a whole—that commands our respect. A decision “contrary to long and unchallenged practice… should be approached with great caution,” “no less than an explicit overruling” of a precedent. Payne v. Tennessee, 501 U. S. 808, 835 (1991) (Scalia, J., concurring). It would be perverse if we showed less regard for in-person age-verification requirements simply because their legitimacy is so uncontroversial that the need for a judicial decision upholding them has never arisen.

But that’s not all that’s wrong with this law and this decision upholding it.

The decision and the dissent concern themselves primarily with what level of scrutiny should apply to age-verification laws. They don’t mention the distinction between “age” and “identity”, or the impact of the law on people who don’t have ID — a crucial issue raised in a friend-of-the-court brief by the Electronic Frontier Foundation and others.

For those without government-issued ID or a sufficiently detailed profile with a commercial data broker, “age-verification” amounts to a categorical bar to access to certain Web content.

As we’ve noted previously, “Regardless of whether it would be possible to set up a system by which individuals could provide evidence of age without individually identifying themselves, that’s not how any of the schemes currently being legislated or implemented will work in practice. In order to verify their age, each Internet user will be required to provide a unique digital personal identifier…. Age verification for adult content is a stalking horse for comprehensive content-based and personalized government control of Internet access.”

The Texas law applies to any “commercial entity that knowingly and intentionally publishes or distributes material on an Internet website”, which appears to include both the publisher and the hosting provider.

There’s no way for the publisher or provider of hosting services for a website to know which visitors to the site are located in Texas. To satisfy the Texas law, web publishers and hosting providers worldwide will either have to require ID from all visitors regardless of their location, or try to identify which visitors to the site are located in Texas, and block them or selectively require them to provide ID.

Because the law applies to both publishers and “distributors” (web hosting providers), hosting providers will be not only allowed but required to pass on identifying and location-tracking information about all visitors to site publishers, with no restrictions on how publishers or hosting providers can use, disclose, or or sell this data. The law could, but doesn’t, restrict use of this data to age verification, or restrict its disclosure or sale. Nor does the law restrict the ability of these companies to share this data with governments or to keep secret from individuals how or with whom data about them has been shared.

Some companies will welcome this as a pretext for commercial surveillance they already carry out and would love an excuse to universalize. If anyone objects to publishers’ or hosting providers’ commercial exploitation of visitor identity and location information, they now have the perfect excuses: “Everybody does it” and “The government made us do it.”

Jun 26 2025

Asymmetric demands for ID

Recent events have focused attention on the asymmetry of police demands for ID:

Government agents demand that ordinary citizens provide evidence of our identity, even when we are exercising rights — such as traveling by common carrier — that don’t depend on our identity. But those same government agents typically refuse to provide the same sort of evidence of their identity, even when they are asserting claims to authority that depend on their identity and status as law enforcement officers.

Masked, armed gangs dressed in the mismatched assortment of military-surplus clothing that characterizes “militias” in failed states are snatching people off the streets of US cities and towns and taking them away in unmarked vehicles, some with no license plates.

Meanwhile, elected politicians and their family members were recently assassinated in their homes by a masked individual in a police-like costume who arrived in a police-like vehicle with flashing blue lights.

The law doesn’t require us to obey the orders, or refrain from defending ourselves or others against, anyone who claims to be an officer of the law. But as the law stands, whether we submit or resist, we do so at our own peril.

Any kidnapper or home invader could, and some do, stencil “POLICE” on their body armor and  shout “Police!” before breaking down doors or dragging people away. Rent-a-cops often dress and carry gear designed to make them appear as much like police as possible. Convincing movie-prop badges are available online or in costume and fetish shops.

In these circumstances, verifying the identity and claim to authority of people who might or might not be police can be a matter of life or death. If they aren’t police, and we go along, we could lose our chance at self-defense or escape. But if they are police, they might shoot us if we try to resist, escape, or help others to do so. If we survive the initial encounter, we might be charged with assaulting an officer — a charge that often leads to beatings or worse by police and jailers, even before a defendant makes it to trial.

18 US Code § 111 makes it a Federal felony to “forcibly assault, resist, oppose, impede, intimidate, or interfere with” any Federal law enforcement officer. But what if you can’t tell if an apparent kidnapper or home invader is a Federal law enforcement officer? And what evidence of their identity and status is sufficient to establish their authority and your duty not to resist or impede them?

Read More

Jun 18 2025

Closing the escape route from the USA to Canada

The governments of both Canada and the US are threatening or testing measures to further close off the Canadian border as the escape route of last resort for those fleeing the US.

Representatives of a coalition of more than 300 refugee rights, civil liberties, gender justice, and migrant advocacy groups came to Parliament Hill in Ottawa today to speak out against Bill C-2, the “Strong Borders Act” introduced by the new Liberal government of Canada. They called for withdrawal of Bill C-2 as a “dangerous shift toward Trump-style anti-immigrant policies and attacks on the rights and freedoms of all residents” of Canada.

Despite its name, Bill C-2 is predominantly a surveillance bill, not a border bill. It would authorize a wide range of seizures of digital devices and data, location tracking, compelled assistance of communications and cloud services providers in extracting and providing the government with data from and about their customers and users, and conversion of requests from the US and other foreign governments into orders legally enforceable in Canada, among a wide range of other Big Brother tactics. Bill C-2 appears to be inspired by, but goes well beyond, the most invasive surveillance practices of the US government.

Bill C-2 is first and foremost a threat to Canadians’ freedom and an attack on the Canadian Charter of Rights and Freedoms. But it’s also a dire threat to the right to leave the US and to the ability of people in the US to exercise, if need be, their right to asylum.

As it pertains to the border, the most significant changes that Bill C-2 would make in Canadian law would be to close most of the few remaining legal pathways for refugees or asylum seekers, especially those fleeing the US, to enter or remain in Canada.

Read More

Jun 05 2025

New travel blacklist aims to expand US travel surveillance

Late yesterday President Trump proclaimed a new ban on entry to the US or issuance of new US visas to citizens of twelve countries, and ordered drastic restrictions on entry or issuance of visas to citizens of seven others.

The US has long sought to globalize its surveillance and control of travelers.

In the past, the US has held out the carrot of possible admission to the US Visa Waiver Program (VWP) to induce governments of favored countries to share information about their citizens with the US. Citizens of countries in the VWP are eligible to enter the US for limited stays and purposes with a simpler, cheaper ESTA rather than a full US visa.

Now the US is using the stick of a travel ban to induce governments of disfavored countries similarly to cooperate, under duress, with US demands that they serve as foreign agents of the US government in identifying, tracking, and collecting and sharing information about their citizens. The countries subject to this new form of transactional, sanctions-based “diplomacy” are those which are unlikely ever be admitted to the VWP.

This latest US travel ban isn’t exclusively limited to countries with mostly-Muslim populations like the series of travel bans proclaimed by  President Trump during his first administration, but was immediately denounced as “transparently racist”.

In addition to its direct effects on the right to travel, freedom of association, and the rights of asylum seekers, the new travel ban appears to be intended as a tool to pressure foreign governments to collaborate with the US in surveillance of their citizens, thereby weaponizing US travel controls to expand extraterritorial US surveillance outsourced to foreign governments.

Read More