• by Wendy Davis , 3 hours ago

Texas Attorney General Ken Paxton on Tuesday urged the conservative 5th Circuit Court of Appeals to continue to allow the state to enforce the App Store Accountability Act, which requires app marketplaces like Google and Apple to verify users' ages and prevent minors under 18 from downloading apps or making in-app purchases, without parental consent.

Paxton's office writes in its newest legal filing that upholding the restrictions will guarantee that parents can "review the commercial transactions that app stores and developers are proposing and entering into with their children."

Last week, a three-judge panel of the 5th Circuit issued an order letting the statute immediately take effect. But the judges who handed down that order did so before hearing oral arguments, and could theoretically reverse their decision after more fully considering the parties' arguments.

In addition to prohibiting minors from downloading apps without parental consent, the App Store Accountability Act (SB 2420) requires developers to say whether their apps are appropriate for children under 13, young teens (ages 13 -15), older teens (ages 16-17) or adults 18 and older.

The statute also mandates that app developers say whether particular in-app purchases are appropriate for children, young teens, older teens or adults. 

In October, the tech group Computer & Communications Industry Association and advocacy organization Students Engaged in Advancing Texas challenged the law, arguing in separate lawsuits that it violates the First Amendment.

Late last year, U.S. District Court Judge Robert Pitman in Austin issued an injunction banning enforcement on the grounds that the restrictions likely violate the First Amendment.

Pitman wrote that the statute "is akin to a law that would require every bookstore to verify the age of every customer at the door and, for minors, require parental consent before the child or teen could enter and again when they try to purchase a book."

Texas Attorney General Ken Paxton appealed the injunction to the 5th Circuit, arguing that the statute represents a valid regulation of "commercial" transactions between minors and app stores.

"When minors download apps they are accepting terms of service, including agreements about how their data is used," Paxton argued in papers filed last month. "The child may even be agreeing to have the information in their phone monetized by the tech companies or used to track location."

The Computer & Communications Industry Association and student group countered that the unconstitutionally "restricts an enormous amount of online speech."

They also urged the appellate court to reject what they characterized as Texas's attempt "to reframe SB2420 as directed only at contracts and data privacy."

"While app store user agreements may ... authorize data collection and set terms for user privacy, the Act does not regulate those aspects of the agreements," the groups wrote. "It instead uses age-verification at the account-creation stage to create a parental-consent obligation that specifically (and exclusively) covers obtaining apps and in-app content."

On Tuesday, Paxton's office largely reiterated its argument that the law regulates commercial "transactions."

"Plaintiffs do not deny that every listing of an app on an app store proposes a transaction, including the user agreeing to data collection and privacy policies associated with the app," Paxton's office writes. "SB2420 regulates this proposed transaction by requiring age verification and parental consent for minors, and it regulates this proposed transaction by requiring age-rating information to be displayed for parents to make informed choices on whether to consent."

The 5th Circuit has not yet set a date for oral arguments.