Shoshana Weissmann: Online Age Verification Rules Are Unconstitutional and Ineffective
"None of these laws prevent kids from viewing anything. They just prevent kids from posting," argues Shoshana Weissmann.
In January, the Senate Judiciary Committee dragged the heads of Meta, TikTok, and X, formally known as Twitter, to Washington to charge them with exploiting children by allegedly addicting them to social media that sexually harms them, drives them to eating disorders, and even kills them. The Spanish Inquisition vibe of the proceedings reached a crescendo when Sen. Josh Hawley (R–Mo.) demanded that Mark Zuckerberg apologize to the families of children for the "harms" supposedly caused by Facebook and pay compensation out of his personal fortune.
But is social media really that bad for kids? And is the solution being pushed by Democrats and Republicans alike—universal age verification for all users of the internet—even technically feasible without shredding the First Amendment, destroying privacy, and creating major security issues? The answer is a resounding no, according to Shoshana Weissmann, director of digital media at R Street, a free market think tank, and author of "The Fundamental Problems with Social Media Age-Verification Legislation." Reason's Nick Gillespie interviewed Weissmann in Washington, D.C., in early February.
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Nick Gillespie: So we're talking right at the start of February. And two interesting things related to this question of social media, its effects on kids, and the need to verify the ages of who's using social media, etc., just happened.
One is that the state of Utah, which had passed a law mandating age verification, pulled it after being threatened with lawsuits from a couple of groups. And the other was a spectacular Senate hearing about trying to protect kids from online exploitation and things like that that ended up at one point in a series of shouting matches, including Facebook's Mark Zuckerberg arguing with Sen. Josh Hawley [R–Mo.]. What was your sense of that Senate hearing? And does it encapsulate something important about the way this general debate happens?
Shoshana Weissmann: For people who watch a lot of Senate hearings in general, you'll know that they're getting a little bit less professional. They'll ask them yes-or-no questions that are impossible to answer. If you understand that nuance is a part of law, it's really disappointing. And I've watched a lot, but this was the worst I've seen. It was just so wildly unprofessional and about a serious issue, so it should have been professional.
I don't blame the audience for cheering, but I blame the senators and Senate staff for not stopping that from happening. Hawley is often unprofessional, and he was extremely unprofessional demanding that Zuckerberg pay for the people who have faced harm here. It was just so bizarre. It was just weird, really. And that doesn't solve anything. He's not solving any problems. He's not approaching the issue with any seriousness. People say a lot that it's all about sound bites, but you could really, really see that's all this was.
Gillespie: Zuckerberg did not come off well in that either, did he?
Weissmann: No, I didn't care for how he came off. I think he could have done better in the hearing at a lot of points. I mean, I don't think that companies are perfect by any means. But Zuckerberg, I think, came off kind of strange at some points.
Gillespie: What about the Utah law? This is not a right or left issue. Both Republicans and Democrats, conservatives and liberals and progressives are talking about stopping the internet from exploiting children in all sorts of ways. Utah was applauded for this law. But then it was going to be challenged. And they yanked the age-verification law.
Weissmann: It's really, really bad. Everyone warned them—the senators, the governor. I love the governor. I adore Spencer Cox. But it's crazy to me that he's getting behind this stuff because it's so unconstitutional. I mean, you can have your policy disagreements, but this is objectively very, very unconstitutional.
Gillespie: How was it unconstitutional?
Weissmann: Oh, man, so many ways. So, the First Amendment [includes the] right to anonymous speech. If you have age verification, you have face scans, you have to show your government ID. I actually just submitted seven pages of comments on the new proposed rules to accompany the law before I found out that it was going to be pulled. So I'm like, "Oh, well, I have this already, I'll submit it. It'll be useful."
[The law] said you can use the last four digits of your social. You can require people to scan their faces and get their government IDs. Just really invasive stuff. I mean, America's in a really bad cybersecurity position. Everyone is hacked all the time. But even if it wasn't, if you're submitting that stuff online, you have reason to believe your speech is no longer anonymous, because that's the government enforcing that. That harms our right to anonymous free speech, which has been upheld many, many times at the Supreme Court.
Also, there's a compelled speech issue that's a little bit smaller. But if you're going to go online and say, "Hey, I'm not happy in my marriage. I want to see what people know about divorce, marriage counseling." And then you think your spouse might realize who you are, posting about that, you're not going to want to do that. Or if you think you have a rare disease or HIV or something, you might not want to have your name tied to that.
Gillespie: That is part of the larger question; in trying to childproof the internet, we end up shutting down all kinds of speech. Very few people would challenge that. But again, to go back to the '90s, The Simpsons had a running gag. In almost every conversation, somebody would shout, "Will someone please think of the children?" It's kind of come back to that in internet discussions because people are sour about social media. Everybody's down on Facebook and Instagram and Twitter. These are hellscapes that are killing kids, exploiting kids, and making the rest of us miserable. So, it seems like the scope for regulating them—the speech, the content, and the business models—has really changed. And this is really where the social media age-verification push is coming from. And people like Brian Schatz, the senator from Hawaii, have joined it and a bunch of other people in the Democratic Party or even the progressive left have joined with Republican conservatives to say this is a good thing.
Before we go into your work on it, Schatz is a big fan of the Protecting Kids on Social Media Act. And this is kind of similar to all of this stuff going on. It would set a minimum age of 13 to use social media apps and would require parental consent for 13- through 17-year-olds. It would also prevent social media companies from feeding content using algorithms to users under the age of 18. So that's kind of the legal landscape that's playing out at the federal level and at the local level.
You have written a series of pieces over the past year that are grouped at RStreet's website: "The Fundamental Problems with Social Media Age Verification Legislation." I want to ask you as a starting point—a lot of this legislation is premised on the idea that people under 18 are suffering vast, obvious, measurable harms from being online. Is that really incontrovertible? Or is that a question?
Weissmann: It's definitely a question. Especially because the evidence is mixed. And kids are individuals. Some kids use tools. Some kids don't. And it depends on the tool too. You always have to work with your kid to figure out what's healthy for them and what's not. Some kids are doing unhealthy things on social media, and that's parenting. The government can't solve that. Someone using social media for five hours might be building a business or showing local businesses how to put themselves out on social media. Or they might just be depressed and something else might be going on. But so much of the stuff going on right now resembles the video game debates, the TV debates. Kids should be probably behind screens less, but that comes down to parenting and getting them engaged in other things. But there's definitely a mix.
As a kid, I used social media to find out I had fibromyalgia. I only know that because I found an online forum where someone said, "Hey, you're getting sick all the time and you have endometriosis. You might have fibromyalgia." And I also started my career online, by adding elected officials on Facebook, which sounds funny now, but that's actually how I started my career. And I'm terrified of closing the door behind me, of saying to the next generation, "You can't make what you want out of life because elected officials want to treat you all the same." That's really wrong to me.
Gillespie: A number of major psychological groups have said that it is not clear that being on social media is harmful to young people. But let's pretend that it is for the remainder of our conversation because you have written pretty powerfully about the fundamental problems with social media age-verification legislation. And let's just start with part one of your series. The headline of the article is, "The Technology To Verify Your Age Without Violating Your Privacy Does Not Exist." What do you mean? How do you know that? What are the implications of that?
Weissmann: So I looked through it. I even had age verifiers reach out to me because they didn't like what I was saying. So I'm like, "OK, tell me about your software. Tell me how it's different." They're like, "Oh, we'll just scan your face." Uh, what? So every time you want to post free speech online, you have to have your face scanned.
Gillespie: This kind of reminds me of when people say, "Well, you know what? If immigrants just carried their work papers with them, then we wouldn't have to worry about illegal immigration." But when you require anybody to carry papers, everybody has to carry papers.
Weissmann: Right. The way they find out if you're underage is by checking your age and your credentials. Basically, the way that age verifiers seem to want to do this is some sort of government ID plus face scans. And it can't be a static picture, it has to be a live picture. So, every time you want to post free speech criticizing the government, asking about marital problems, asking about disease, whatever it is, you're going to have to have your government ID, and the internet's going to have to scan your face, which is really, really, really invasive. Because obviously, everyone lies with a checkbox.
With government IDs or credit cards alone, you could just fake your parents. There's a great Simpsons line where Bart's like, "Hey, Lisa, is this dad's credit card number?" And she's like, "You know it is." Kids memorize that stuff. And they would with government IDs if that was all that's required, [like] social security numbers, which are also not secure. They're leaked everywhere. So it just creates massive cyber risk. None of these are safe. None of these protect your privacy. And this massive, massive risk is all to verify the age of children where parents could just not give them phones or give them phones with very, very limited access or block stuff on their computer. There are ways around this that put the parents in charge.
Gillespie: In a different section of your series, you write that if you are requiring this type of data to be put together, then it's going to be in a database somewhere that foreign governments or enemies of America can get it. Because we're in a panic over TikTok, right? Every new dance craze goes directly to the Beijing basement of the Communist Party in China. So this obviously presents a massive risk because you're pulling data, which then is hackable. There's a related concept that you've written about called data minimization. How does that factor into this?
Weissmann: I love data minimization. This is the kind of person I am now where this excites me. Just less of your stuff online. The less stuff you share, the safer it is. So I don't always like that platforms require as much information as they do, but sometimes they're doing it in pursuit of something like giving you a better product or whatever it is, but forcing them to require this is nuts. And like you were saying with TikTok, in Utah, Gov. Cox had said that he thought TikTok was a real security threat, but his law would have required them to collect face scans and IDs and Social Security numbers. And whether you think other governments are an issue or our own is an issue, you should be like, "Hey, maybe we don't create this massive risk for other people to get our data." And that's part of data minimization. The less that you put out there, that you share around, the less worry you have to have. It's a simple principle, but it's a really important one when everyone is hacked constantly. I've been in so many data breaches. We all have.
Gillespie: What does it mean that we're being hacked all the time, but it doesn't really seem to change what we do?
Weissmann: It's kind of bad. I think we as a society need to figure it out a little bit more. But basically people can log into your stuff, so you should have two-factor authentication. It's not perfect, but if you have one of those code generators, that's the best method. And it stops people from logging into stuff. I know that people keep trying to log into my Instagram, and then [Instagram] will email me saying, "Hey, if you want to change your password, here's the link." And they don't have access to my email. So that's good. So I can handle it there. World cyber security isn't in a great place. And all this stuff puts it in a worse place. But you want to try to make things safer in the environment we live in. Put less of your information out there, especially sensitive stuff about your location. IDs are super sensitive. Social Security numbers, you really don't want to share those with everyone.
Gillespie: Although, social security numbers, it's kind of amazing. If you go back to the '50s and '60s, people mostly on the right—paranoid people who turned out to be kind of correct—believed the Social Security number was going to become effectively a national ID; it's required everywhere. And you can buy them by the boatload, right?
Weissmann: Oh, yeah. I think mine was leaked in the D.C. health breach. So, I'm screwed there. Like, that's not nothing for me. And you can find databases of them online, unfortunately, pretty easily.
Gillespie: Some of the articles that you've written talk about how age-verification methods in their current forms threaten our First Amendment right to anonymity. I think on some level, those of us who remember our history classes from grammar school or read something about The Federalist Papers, we understand that in a profound way, America was founded on anonymous speech. But nobody likes anonymous speech now, right? Anonymous speech is bad, right? So why should we care about our right to anonymity?
Weissmann: It terrifies me that there are so many lawmakers saying—even Nikki Haley has said this—"Oh, you know, every user should have to verify their identity online." OK, so we don't get whistleblowers anymore. No more whistleblowers. We're opposed to that. The Federalist Papers, like you're saying, are anonymous. The NAACP, their members were anonymous, back when everyone hated black people. And that was a really, really dark part of history. But thankfully, the First Amendment protected them. And they had a right to anonymous association.
And it's important for the same reason today: The government doesn't like when people disagree with it. And sometimes you have to do so anonymously in order to avoid certain levels of scrutiny there. Not to say you shouldn't be held accountable for your opinions or whatever, but anonymous speech has always been an important part of American history. And there are centuries of precedent saying that, yes, we have the right to anonymous speech under the First Amendment. So if you infringe upon it—it's not saying you can never infringe upon it—but you have to have a really, really good reason. It has to be narrowly tailored. And these means just aren't.
Gillespie: It's fascinating to me, again, thinking back to the '90s, because the parallels are ominous and disturbing and ubiquitous, but AOL was popular. America Online, when it was on its move to becoming the largest ISP, its whole selling point was that you could come up with a handle that was kind of your name or you could make something up. And they really pushed back against attempts to crack the anonymity of their users. AOL was great because it was anonymous.
Weissmann: The history there is so interesting. I love Jeff Kosseff's book on anonymity. I learned so much through that. I did not realize the extent to which we have precedent here. And also the way it worked with AOL trying to not unmask users and trying to protect users—I don't want to get too nerdy—but the internet history around this stuff is really, really fascinating about how big a deal it was back then. We shirk a bit about anonymous speech, but it is really important. Sure, some people use it wrong, but there are studies that show that some people actually use it better, and they're using anonymity in actually really healthy ways. So our gut assumptions on it aren't always right.
Gillespie: I wrote a piece for Reason about this in the late '90s called "Child Proofing the World." And one of the metaphors I use—and I had young kids at the time—was, just because I have to childproof my house doesn't mean the world has to change everything because I have kids. And that may sound callous, but it really isn't.
You also have talked about how the age-verification methods threaten our First Amendment rights beyond anonymity. So how do they cut down on our free expression rights?
Weissmann: So a big thing is chilling speech, because you have the pure anonymity issue where you're actually not anonymous. They took my ID, they took my face scan. Let's say their cybersecurity is immaculate. If you don't believe that, you're still not going to want to post the stuff that you would otherwise anonymously. So there's a chilling speech issue. Kids have First Amendment rights, and most content on social media is First Amendment–protected in a way that would apply to kids too. It's not narrowly tailored just for the stuff that we say kids maybe can't look at. It's really, really, really broadly tailored.
There's also the First Amendment right for content to be seen by users. People might think it's silly. "Oh, Twitter doesn't have a right to be seen by people who want to access it." OK, well, what about someone criticizing the government? The government could just say, "Oh, well, they don't have the First Amendment right to be seen by people." And then you can kind of see why that's a dangerous perspective and why it's not supported by First Amendment jurisprudence. There's a First Amendment right of parents who don't care about what their kids are doing online, or are OK with what their kids are doing online, to not have to deal with those barriers to speech. So it's just up and down. It violates the First Amendment.
Gillespie: One of the most powerful parts of your work in this series is simply the headline "Age Verification Legislation Doesn't Do What Legislators Say It Will." Summarize that article.
Weissmann: So when I talk to people about age-verification law, there's a lot of different issues they bring up. One is exploitation. They're worried about predators reaching out to children, and that's very reasonable.
Gillespie: But is the internet mostly a child exploitation racket?
Weissmann: Definitely not, but it's there. There are definitely people who want to try to do that stuff. It's not to say the government doesn't have a role there, but parents really do need to work with kids to make sure they understand the risk and what to say, what not to say. It's silly, but when I was on Neopets and chatting with people, my dad was like, "Never tell them where you live." And I was like, "Haha, I'm saying I'm in Texas. They'll never know where I am." But maybe that wasn't the most ingenious thing, but it was still a good perspective to have, to just be a little bit more careful about that stuff.
Gillespie: We hear a lot about sex trafficking and about child sex trafficking, and it obviously happens, and that is horrible. And we need to figure out ways to minimize that or get rid of it completely. But is there a reason to believe that child exploitation, however you define it, is large and growing on the internet?
Weissmann: I'm not sure, exactly. The reports are up, but I know that a lot of it is duplicative. Which is good, that there are more reports of the same thing. That's not an issue. It's just hard to measure with a lot of unlawful content in general. I'm not sure about how sexting for kids rose or where it's at, but I think that that did make it harder, especially when online girlfriends became a thing. Then you really didn't know who was behind the screen. So I think it is something to combat, and I'm not sure exactly how it's growing, but there does seem to be somewhat of an increase of it especially from kids who don't know what to predict, who never lived through the Nigerian prince era, that kind of stuff.
Gillespie: But you say age-verification legislation won't do what legislators say it will. What do legislators say it will do, and how does it fall short?
Weissmann: So what I was saying was that the big reason that legislators and other people just want to stop kids from using social media is exploitation. Another issue is that they just don't want kids posting, that they think that they'll become addicted. The last piece is they don't want them to access content that they don't want them to, whether it's liberal content or too conservative content.
But here's the thing: None of these laws prevent kids from viewing anything. They just prevent kids from posting. So [for platforms that don't allow] kids under 13 or that have age verification, it doesn't stop them from viewing the content. So if you think they're addicted to scrolling, that's not going to solve anything. And if you think that they shouldn't be viewing the content there, it also doesn't solve anything. So they'll say it's kicking kids offline. But really, you don't have to log into a lot of these platforms to see stuff. I don't ever log in to Reddit, and I read constantly on Reddit. TikTok, you don't need to log in. It makes it a little easier for you.
Gillespie: And, if we may—the cameramen are the ones who gave me this information—on Pornhub, you don't have to log in to view it.
Weissmann: That's a good point. It's true. You don't have to login, and they're not blocking you from accessing these sites in the homepage way or in the clicking-through way. Tons of these sites you don't have to log into, and you're still viewing the content from any sites you'd like. So they're saying it's going to stop kids from using social media without parental approval, but it really doesn't.
Gillespie: A lot of regulation is supposed to be about content, but then it ends up moving into business models. And this was certainly true of proponents of net neutrality. Ultimately, we're trying to say that phone companies and ISPs had to do business in a particular way. So it's really kind of a business issue.
A lot of this legislation says, "Kids under 13 can't use social media. We're going to ban them somehow." But then it will say for kids under 18, sites can't serve up content to them using algorithms. And algorithms have kind of replaced Satan as the vague, sinister, ubiquitous spirit that is threatening our world. Why is it wrong to tell websites or service providers that you can't use algorithms in general? And then why is it misguided that you can't use algorithms for kids under 18?
Weissmann: So there have been a few less popular proposals that completely banned algorithms. You can't do that. Time order is an algorithm. [Those proposals assert that] the only way to keep people safe is raw data. Even an RSS is ordered.
Gillespie: I mean, that would just turn us all schizophrenic. We would be like in A Beautiful Mind, where it would just be a display of data flowing around us.
Weissmann: That's scary. That's going to be harmful. They don't understand how algorithms work. And then it's like, well maybe time ordered is OK. And then you have to remind them, what about reverse time order? Oh, I guess that's OK too. And it gets really, really silly. They even don't want to target kids through algorithms with their interests—so if a kid likes soccer, you can't show him soccer stuff? That's stupid. If a kid wants to learn more about math, you can't target based on their interest in math. It's just ridiculous.
I think people overestimate the issues with algorithms. I know one issue is that if you're into unlawful stuff or bad stuff, that it'll show you more of that too. And I think it's good that platforms are working on mitigating that because even, oddly enough, on Tosh.0, there's a segment about that, about a series of videos that were basically showing young girls doing cutesy things. And then you realize it wasn't made for other young girls. So, of course, YouTube should not show people those kinds of content when they realize what it's really about, even just from a normative standpoint. But in most cases, the algorithm just knows I like marmots. So hey, here are marmots, Shoshana.
Gillespie: And there was an earlier fear—this is going back maybe a decade—that "I started out watching puppy videos and then 15 minutes later, I signed up for ISIS." And most studies that looked into that did not actually bear out the idea that there's a quick or even long-term radicalization algorithm that is being widely applied or used or people are falling into.
Weissmann: People seek out the stuff they want to seek out, and the algorithm just helps them seek it out more. Algorithms are math. When you're mad at it, you're mad at math. And it's silly to me.
Gillespie: You also write that regimes that run age verification through the government would allow prosecutors to make children federal criminals if they lie about their age.
Weissmann: Oh, this was fun. That was the Schatz bill, the [Protecting Kids on Social Media Act]. And I do respect Schatz a lot. I think he's trying to do the right thing. I don't think he's doing it right, but I think he's trying. And a lot of what I've seen that he's saying, I kind of respect more than I do from other elected officials, but it's really bad.
I mean, when you lie to the government, like that can be a federal crime. He thought, maybe as a better way to protect data, it would be better for the government to handle age verification. But that means if kids lie to that entity, whether it's run through a government contractor or an agency, you can be a federal criminal because you're lying to the government. And sure, we don't prosecute kids a lot, but government sometimes starts enforcing stuff that it didn't used to enforce. And you don't want to add a new law to the books that makes it possible for kids to become federal criminals for trying to login to YouTube. That's not wise policy.
Gillespie: At the same time, services should be free to demand whatever they want from people, right?
Weissmann: Sure. I don't like when they want a lot of my information, but if that's what they want, they can suffer the business consequences.
Gillespie: For people watching this on video, they may have seen I was drinking out of a 7-Eleven cup. I went to 7-Eleven to get coffee this morning, and they asked for my phone number. I was like, "No, I don't want to give you my phone number." And I was going to walk away, but they were eventually like "OK." I understand why they're doing that. And I also understand the power of getting more personal information. One of the things that sites can do more than regular businesses is tailor more stuff directly to you. But that's a negotiation.
Weissmann: You have some say there, and it's not mandatory. And some companies realize that users don't want that. So they try to step away.
Gillespie: With age-verification systems, you mentioned Neopets. My younger son was really big into Club Penguin. It no longer exists. But it was kind of a social media, a very walled garden for kids to use to do stuff and interact and have online adventures. Were there services that did a really good job that are directed toward kids that protect that? And are there examples to be learned there from how we might change the way kids interact with the internet?
Weissmann: Yeah, I liked Neopets a lot. I actually made a few internet friends, and my friends were into it. I forget the names of [my pets] and they're dead now. They're all dead. I haven't fed them in so long. I haven't even dug their graves.
I like the way Neopets operated. I always felt pretty safe there. I'm sure they could have actually done some more nudges like, "Hey, remember not to give up personal information to strangers," but overall they did good. Club Penguin is a really good example because I remember the big trend of trying to get banned from Club Penguin, but they did a good job of banning people being inappropriate, and then it became a meme. So it was a bit of a Barbara Streisand effect. I know Instagram wanted to do Instagram kids, and then everyone flipped out over it so they couldn't. But I actually think that's a good idea. Some safer areas where you still warn kids about stuff, but maybe there's a little bit less risk for them.
Gillespie: What's the role of the companies here? Broadly, people who are offering goods and services, have they fallen down on their job to kind of proactively preempt this type of legislation? What do they need to be doing better?
Weissmann: I think the big thing is that they should be coordinating to make parental controls easier. Genuinely, I think that's the big lesson here. I'm not sure it would have stopped the legislation, even. I know that parents are sometimes overwhelmed by all the choices, but it would be nice if parents had one set of controls that made it a little bit easier, because you can't have device-level filters, platform-level filters, app store filters. But it would be nice to give something to parents that's a little bit easier here just to manage, just to show them how stuff works. Because just like with any technology, it gets complex. I'm online way too much, so I know how all this stuff works, but make it easier for parents. I'm not sure that companies have exactly failed, but they really could be doing better.
Gillespie: And a clear part of this is kind of a public relations war. Again, going back to the '90s, cable TV didn't really become a fully national phenomenon until the late '80s and the early '90s. And then, under Bill Clinton, Janet Reno, the attorney general, went on a jihad against cable TV because it was showing too much sex and violence. And it obviously wasn't, but out of these sets of concerns came things like the VHS, which was a technology mandated into every new TV. And then the idea was that we're going to rate TV programs and then parents will set their TVs to a certain level so the kids can't block it. Nobody used it.
But it seems like companies now could do a better job of combating the negativity. But they're part of the problem, aren't they? Both in terms of not seeming to care, (maybe, maybe not), but also colluding with the government. One of the things that is very different now from the '90s is in the wake of revelations about Twitter and Facebook and other companies not just relying on the government or rolling over for the government but asking the government to say, "Hey, would you moderate our content?"
Weissmann: It's disgusting. It's regulatory capture. And they know what they're doing violates the First Amendment, but it benefits their business. I do understand on a level: You're a business, your job isn't always to fight for freedom. But at the very least, you shouldn't be proactively fighting against freedom. I get if government pressures you too much, you might have to roll over a bit. But rolling over is different than what a lot of these companies are doing.
I was very grossed out by how Snapchat and Facebook were just like, "Oh, please regulate us" and put it sort of on other people. And it's just silly. Snapchat, I also personally have never had a lot of respect for. They used to tell politicians to go on Snapchat, that's where the kids are. But [Snapchat] knew that's not where you're going to reach people for politics. That was just not ethical business.
Gillespie: You're a woman. Instagram has gotten a lot of heat, partly because of reports that were leaked from within Facebook saying it has a problem with certain types of adolescent female image issues. Do you buy that? Is that a serious threat to the idea that free speech should dominate the internet?
Weissmann: So what's wild to me is people flip out over this. As a kid, all my friends had eating disorders. Every friend. And it wasn't because of Instagram. It was because of models and magazines and TV.
We were all always worried about being thin enough, and social media didn't exist then. It was all because of the images we were shown. Whereas now there's a lot of heavier women on Instagram who look great, and they're showing, "Hey, you don't have to be perfect." It's not about weight and cellulite. It's actually really nice to see that there are girls showing, "Hey, if you look like I do, here's how to dress, here's how to feel good about yourself."
Gillespie: One of the great celebratory points of the '90s was the end of the mainstream. And particularly there was a lot of discussion about ideals of female beauty. You know, ideals of male beauty don't get the same kind of attention. But in both cases they expanded vastly. So instead of saying, "OK, you can be Raquel Welch or Twiggy," there's an infinite gradient of beauty and of being comfortable with yourself. And we seem to be occupying that world in reality now. And people are like, "We've got to shut this down. Something's gone terribly wrong."
Weissmann: Yeah. Instagram's tried to get rid of a lot of the eating disorders stuff, but there's a lot of really good, healthy content. There's unhealthy content too. But the mix is way better than it was when I was a kid. If there was a heavy woman on TV, everyone noted that she was heavy, and that was the end of it. Everyone had the same body shape, they didn't have many curves. And when they did, it had to be Britney Spears or nothing. You couldn't have too much of a waist and you couldn't have too much of a butt. But now, online, it's really proliferated. All different kinds of women showing, "Look how I'm beautiful." I think that's really nice.
Gillespie: Do you think perhaps that's the problem? Not that certain new forms of hegemonic body types are shown, but that actually anybody can do anything and that's what's freaking people out?
Weissmann: Oh, I'm sure that there's a level of that, of, "It's not like when I was a kid." I think there's a real aspect of that in here. But in general, it just baffles me that everyone's worried about body positivity online when that wasn't a thing when I was growing up. Every young girl was worried about being thin enough from the time we were like 8 years old. All our friends talked about being thin, and I'm sure that there are still issues like that, but the people they have to look up to are a lot broader. I just have to think that a piece of this is people not understanding that, or people thinking this is different from when I was a kid.
Gillespie: One of the other things you write about is how age-verification laws don't exempt VPN traffic. But that traffic can't always be detected. Explain what a VPN is and why these are important.
Weissmann: So people can use VPNs to make it seem like they're in a different place. So me in D.C., I could be like, I'm in Iceland or I'm in Utah.
Gillespie: One of the things that everybody talked about when VPNs happened, it meant that if you're a political person in China or in Iran or whatever, you can use VPNs in order to actually kind of access the internet and speak freely.
Weissmann: Totally. There are a lot of great use cases, like to evade bad government and oppressive government. The case isn't anonymity that the normal person uses it for. It's for Netflix. It's definitely Netflix. Or to just try to avoid a little bit of extra tracking. You're not trying to be anonymous. You're just trying to have less stuff acquired.
Gillespie: And I've noticed too VPNs are something that went from being kind of celebrated because this is how we're going to help people in authoritarian countries find freedom in the internet and speak to evade what used to be called the great firewall of China and stuff like that. Then it became, "OK, this is kind of cool because I can watch Netflix anywhere around the world from the U.S. feed." And now it's that the only reason to use a VPN is to engage in some kind of criminal or sexually perverse behavior.
Weissmann: Exactly. Meanwhile, my friend's fiancé is a normal guy; he doesn't do politics. He's a trainer, and he likes VPNs because he's just like, "I don't want stuff tracking me." And so that's the normie use of it in America.
Gillespie: So these age-verification laws don't exempt VPNs. Why is that a problem?
Weissmann: So this is a really fun rabbit hole because it makes these laws impossible. So, VPNs can convincingly make it seem like I'm in Iceland or Utah or wherever. You can detect a lot of VPNs. Not all, but you can detect a chunk of VPNs and realize, OK, this is a VPN. So in those cases, if you're in Utah and you're a social media company that operates there, what you would have to do to comply with the law is say, "You're using a VPN. We need to verify your age. I know this is just a Utah law, but to be on the safe side, in case you're in Utah trying to get around the law, we have to verify your age." That would violate California law because in California, if you treat VPN traffic differently, you're in violation of the law. So there's impossible compliance at that level.
Let's say you really can't detect it, like you're using acceptable methods. And I talked to different VPN blockers and VPN providers, and they basically said you're not going to be able to detect all VPN traffic. So let's say I'm in Utah. They're supposed to verify my age. And they think I'm in Arkansas or maybe someplace without one of these laws. Maybe I'm in Maine. So it appears that I'm in Maine. I'm really in Utah. I get around the law. They don't verify my age, and I'm a child. In that case, the social media company that failed to verify my age would be liable. That's nuts. It's impossible to comply with that. And there's just this sense of, "Oh, sure, you can figure it out," but no.
Even worse, the law applies to Utah residents. How the heck do you know if someone's a Utah resident? You literally have to verify everyone's age. Because if a child in Utah is in D.C. now and logging on, well, the IP address is D.C., or the D.C.-area because IPs aren't exact either. So they don't verify the age, and now they're liable. You create just absolutely impossible compliance.
And to drive the point home too, with Netflix, they fail to detect a lot of VPNs. Netflix has massive incentive because of its licensing agreements with various companies and various shows. Basically, it's really bad for them if people can get around these. So that's why they block VPNs to make sure that they're upholding their licensing agreements. So if even those guys can't do it, then how the heck are all these social media companies going to be able to do it when the incentive is even higher to use VPNs to get around these laws?
Gillespie: Let's talk a little bit about R Street, the place where you work, and your journey to what you do and how you think. What is R Street?
Weissmann: So R Street is a free market think tank. We were founded on insurance policy, which is fun. I actually really enjoy talking flood insurance now, but we do everything from energy to cyber security, tech policy, obviously, licensing reform, a lot of justice reform. I love my job. It's a lot of fun.
Gillespie: When you say free market, what does that mean?
Weissmann: So, a lot of people think libertarian, but we're not always libertarian, and we don't mind government if it solves a problem narrowly tailored. Or if the government's already involved with something, we're not going to let the perfect be the enemy of the good. We're fine with incremental reforms, and we're fine with turning a bad system into a better one.
Gillespie: What's a place where government is working well, where the government regulations or structures in place are delivering a good product or service?
Weissmann: That's a very good question. I think that government really does have a role in things. I just don't think it often executes well, like with cyber security. I think there are legitimate roles for government. I just don't know that it's doing well. There are different standards across different agencies. It doesn't help businesses know what they should be doing. It even sometimes creates adverse incentives not to report breaches. So we want to fix that. We want to make sure that people feel comfortable reporting breaches and that even if they're penalized, that we're not harming them for telling the truth there.
In justice reform, I mean, we need police but there are ways it could be working better. So we like justice reform. We like bail reform. And, there are a lot of places experimenting with different models to figure out what works better. But we have important rights that are often violated by police. We want to try to stop that and give police the tools they need.
Gillespie: When you think about the whole suite of what R Street and other free market groups are talking about, in many ways there are issues that were not being talked about 20 years ago en masse or 30 years ago, things like occupational licensing reform, zoning reform, things like that. This seems to be a kind of golden age. These are being seen as useless, or whatever good they might have provided, they're now really choking down the economy as we live today. Do you think that's accurate, that there are reasons to be very optimistic about a certain type of policy reform change?
Weissmann: Oh, yeah. It's been crazy to me to see the broad interest in licensing reform from everyone across the political spectrum. And they're excited about it. Like when I go to Congress to talk about it, they're like, "Yeah, let's talk licensing reform." That's crazy, I love it. Or even energy permitting reform. It's really exciting that that's a thing. And they might be messing it up a little bit in Congress.
Gillespie: With occupational licensing, one of the things is that, say, in Ohio, you have to do 2,400 hours of barber college. But you only have to get six hours of training to be a cop. Nobody responds to that by saying we should make the cops do 2,400 hours. It's more like we just need to rethink how we license and certify people and whether or not, in many cases, that's a role for the state or for private organizations.
Weissmann: I just love that there are so many elected officials interested in this. I mean, [former] Gov. Doug Ducey and I, in Arizona, we became friends because of this, because he was really big into licensing reform. And we hit it off. And we've been friends for like seven years because of it, which is just such a funny thought to have that there's elected officials like really, really interested in narrow regulatory reforms.
Gillespie: Is there a generational component to the conversations that R Street is involved in like tech policy and online policy? And at that tech hearing or the child exploitation hearing we heard, there are always these moments when people like Lindsey Graham, who clearly has never dialed a telephone or used a cellphone or been online or driven his own car for decades, is railing about technology. And it's just kind of like "OK, boomer" moment. But it's not that easy, right? It's not just, old people are the problem and they have to get out of the way for young people. How do these issues of regulatory control of common use media play out?
Weissmann: So it's actually really varied across issues. One interesting thing is that with licensing reform, it's very Gen X and younger more interested in it. And even older than that, not that they're not interested, it's just not their thing. But with tech policy, the lines are all over. Like, [Sen.] Ron Wyden [D–Ore.] is one of the best people on this, and I adore Ron.
Gillespie: Ron Wyden, the Oregon senator, is one of the authors of Section 230. You mentioned Jeff Kosseff. His work we respect in common. He wrote a book about Section 230 as well as anonymous speech and then, most recently, defending misinformation. I'm just very curious to see where he goes next.
Weissmann: Oh, I know. He keeps ruining things though, because when he writes about it, it becomes a thing. And I'm like, just stop writing. He's older, but he's really smart and he knows what he's doing, and he's thoughtful. And I don't always agree with him, but I get where he's coming from. But then you have younger members like Hawley, who is atrocious. I mean, he's not even trying. There are other younger members who just don't know what they're doing. I actually once had a meeting with a staffer for [former Rep.] Madison Cawthorn [R–N.C.] on licensing, and he's like, "We want to force the states to do what we want on licensing." And I was like, "Hey, there are a lot of constitutional issues here, a lot of functional issues." He's like, "Yeah, but we just want to force this." And I'm like, "OK, this isn't going to work." But it's not a young or old thing. It's how deep are you going to get into the issue. There are members who are more serious and less serious on this stuff, and it's really just not an age thing.
Gillespie: At Reason, in the '90s and beyond, we used to talk about the real axis being control and choice. I guess that still exists. Somewhat related to that is the sense that we've gotten to a point where the Republican Party or the Democratic Party win an election because the other party had just been in control. People are like, "I don't want that. We'll try this."
There's a real breakdown of consensus it seems in many aspects. You see that in presidential elections that tend to be very close. You see that in control of different parts of Congress going back and forth. Is that what is really being expressed in these debates over how we control social media? Is that really what is being talked about without being acknowledged, that my side can't control the conversation so we want to figure out ways to do that?
Weissmann: I know what you mean. But I'll push back on the control vs. choice thing, because some of the best regulatory reformers in general are some of the worst people on social media regulation, which I don't fully understand. But I think it gets to this point where I think the bigger dynamic is just moral panic, that people are freaking out and then they lose their principles and their sense on certain things. Which is why some of the people I adore the most—I love Gov. Spencer Cox in Utah. He's done great, great things, but he's really, really wrong here.
Gillespie: What is he good on? When you say he's done great, great things, what are those things?
Weissmann: Just every little thing. He's a very good governance guy. He pushed for a lot of Utah state government people to be able to work from home to save money and to make it easier on families. And that's some nice common sense stuff. And he does a lot like that. He's great on licensing reform. His first executive order was licensing reform. And now the Utah Department of Commerce has a guy whose whole job is figuring out the best way to make licensing work, where it's working, where it's not, if we need more licensing, but it's very objective and very thorough and very thoughtful. And it's incredible.
This isn't due to Cox, but there's a Utah regulatory sandbox for lawyer licensing reform. And Cox is in on all this stuff. He's really, really good at what he does. But man, when it comes to social media regulation, I don't know where his brain is going on this. I don't understand, except if it's moral panic. And he thinks that the freakout and what he's feeling and what he's thinking here is just more important than all the other principles.
Gillespie: I'm thinking of somebody like Taylor Lorenz, who's now at The Washington Post. She's been at The Atlantic, The New York Times, etc. She recently wrote a book that's really interesting. And generally she's very pro–social media or new forms of media that allow younger people to express what they're thinking. I interviewed her for Reason years ago, and it was great.
But she and other people have been talking—this is something on the right and the left—about how the problem is that big corporations or big internet companies are able to manipulate your feeds, are able to make you want certain things or to see certain things, that they have become this vast reality distortion machine, so that when you're online—and we're increasingly online—you're not seeing the real world.
Again, this goes back to certain debates in the '90s and even in the '50s where there was a critique, broadly speaking, of unregulated capitalism, that it allowed Madison Avenue and the hidden persuaders, the mad men. The mad men of Madison Avenue who were using psychology and science to make you buy appliances every year, even though you didn't need them, and to buy this car rather than that car. That seems to be kind of flourishing again. How does one engage that or combat that idea that we are not in control of our social media feeds?
Weissmann: It's funny. I just think it's one of the most toxic ideas out there. I think understanding and empowering autonomy is probably the most important thing in life. If you don't believe you're in control of your own destiny, then what do morals matter? If everyone else is controlling you, then nothing you do matters and you have full license to be as awful a person and do as bad things as you want. I have like almost 70,000 followers, and they love regulatory reform. They love slobs and marmots and regulatory reform. How do we even live in an age where that's possible? I spend so much time on all trails and so much time offline hiking, and it's only possible because of our current age. Because, one, I have enough treatments for all my diseases, and I'm up to 11, which is fantastic.
With hiking, even women traveling alone is kind of a recent thing in a lot of ways. Not a century ago, that wasn't much of a thing. Knowing where the trails are, having people review and tell you, "Oh, there's a bear here. There's a wolf here," stuff like that. Being able to create community with the people I meet—I meet people on trails. Then we follow each other on Instagram and meet up next time we're in the same place. The stuff that's possible, the levels of autonomy that are possible, and the power to choose your own life that are possible are often because of social media.
Like I said before, finding out I had fibromyalgia, not through the almost 30 doctors I had seen by that time but by one internet forum after Googling, that's incredible. I just think it's the most empowering thing. All these different mediums we have, all this information. Sure, some of it's wrong, but you can research. I went to a doctor to figure out if I had fibromyalgia. I've been led down rabbit holes that solve problems that I didn't even realize I had. And I just think that's the proper way to see this. Sure, there are problems, and sure, you can just kind of get lazy. But I know people who are lazy and just play video games all day. We're not railing against that screen time. For some reason, it's the dumb dances on TikTok that freak everyone out.
Gillespie: So, what you're saying is that the world that we live in is a mix of online and off. We have much more information now, and that doesn't alleviate our need to be critical thinkers and critical learners and things like that. But it gives us many more opportunities to find out what we are, who we are, and how we want to live?
Weissmann: It empowers autonomy in just incredible ways. Not everyone will embrace it. My close group of friends, almost everyone is insane about exercise. We love exercising. They want to run. I'm not much of a runner yet, but I want to hike farther than everyone. They want to run faster than they ever have before, and I don't think that was as big a thing. People went to the gym. But the competition, the excitement, the empowerment for each other online, the level of community you can find, even the people I stay in touch with all over the world because we have hobbies in common. I know that I can be a little bit more extroverted than a lot of people, but there's really this way to find community that's never existed before, so people can get together and come up with ideas and, like you said, find out who they are and what they are. But it's about finding out who you are and what you are, not letting things shape you and everything shapes you to a degree. But now way more positive things can than could before.
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