• by Wendy Davis , 2 hours ago

A Texas law requiring Google and Apple to prevent minors from downloading apps or making in-app purchases without parental consent "unconstitutionally intrudes" on parents' relationships with their children, the conservative organization Patriot Voices argues in a Supreme Court filing.

The group, founded by former Sen. Rick Santorum (R-Pennsylvania), is urging the court to reinstate a block on the law.

"No matter what each parent believes about the degree of autonomy that is best for each child, the State of Texas requires that the parents constantly look over their children's shoulders," Patriot Voices argued in a friend-of-the-court brief filed late last week. "Parents who prefer to use the app stores' existing granular controls must follow the State's blunt regime, and so must parents who prefer to give their children broad discretion."

In addition to prohibiting minors from downloading apps without parental consent, the law also 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 requires app developers to say whether particular in-app purchases are appropriate for children, young teens, older teens or adults. 

U.S. District Court Judge Robert Pitman in Austin blocked enforcement of the Texas App Store Accountability Act (SB 2420) on First Amendment grounds last year, but a three-judge panel of the conservative 5th Circuit Court of Appeals lifted the injunction late last month and allowed the law to go into effect.

Two of the 5th Circuit judges on the panel said in a written ruling that law merely regulates proposed "commercial transactions" between teens and app stores.

"App store transactions are commercial in nature," two 5th Circuit judges (Reagan appointee Jerry Smith and Trump appointee Andrew Oldham) wrote.

"App listings propose commercial transactions, regardless of whether any monetary payment is made," the judges added -- apparently based on the assumption that all free apps collect users' personal data.

The tech group Computer & Communications Industry Association and a student organization recently petitioned the Supreme Court to reinstate the block on an emergency basis.

Among other arguments, the student group disputed that the law merely restricts commercial speech.

"Speech distributed by apps is not 'commercial speech' merely because it is provided in exchange for consideration (monetary or otherwise)," the student group argued in its petition.

"The Fifth Circuit’s contrary view ... would render virtually the entire internet -- not to mention the distribution of every book, newspaper, magazine, movie, or record album -- 'commercial speech' the government could more readily ban, restrict, edit, or compel," the organization added.

Patriot Voices supports the request to block the law -- although for different reasons.

"While some parents may want to approve every download, others may decide that a mature teenager who is already capable of driving a motor vehicle, supervising their younger siblings, and working a summer job, can, and should, have broad discretion over how he or she spends time online," the group argues.

"Other parents may choose to use the existing parental controls and family settings that are available to them....SB 2420 eliminates all such discretion and instead imposes a single state-prescribed model that supersedes individual parents’ judgment," the organization adds.

A host of tech industry groups and digital rights advocates also urged the Supreme Court to halt the Texas law.

Those groups dispute the 5th Circuit's conclusion that app stores merely propose "commercial" transactions with consumers, arguing that app marketplaces "are modern distribution points for protected expression across media: films and video services, books and audiobooks, news, messaging, web browsing, educational tools, and games, among others."

Texas Attorney General Ken Paxton on Monday urged the Supreme Court to continue allowing enforcement.

Among other arguments, he says the law prevents minors from "contracting away" their privacy to app stores, without parental permission.

"Before SB 2420, minor children could contract away their data and privacy rights to app stores and software developers," Paxton argued. "Curbing this practice -- and empowering parents -- falls squarely within Texas’s core police powers of consumer protection, contract capacity, and child protection."

At least one outside organization, the Institute for Family Studies, is supporting the law. That group last week argued in a friend-of-the-court brief that app stores "have degraded the integrity of parental authority by allowing children to download any app they want surreptitiously."

The Supreme Court hasn't yet indicated when it will rule.