As App Store Accountability Act proponents put more chum in the water, one particular red herring stands out. Specifically, some of the proponents of the bills argue that because minors’ use of an app store involves an agreement, a statutory mandate should exist for app stores to obtain parental consent to download an app. This argument is based on false premises and is entirely beside the point in a few ways:
- Minors enter voidable contracts all the time. The fact of the contract is not the problem, the content sought to be accessed is. The advocates argue that app store terms of service, agreed to upon using the app store for the first time, are somehow uniquely coercive. But there is nothing unique about app store terms of service and all such agreements are governed by state laws allowing minors to void most contracts they enter into. Those state laws are in fact the solution to the problem the advocates think they’ve identified. To put it simply: have you ever heard of a grocery store dragging a kid into court to enforce a contract to buy a pack of gum? No, because the purpose of those state laws making contracts with minors voidable is to keep kids from being held to contractual terms. Let’s take a closer look at one of these laws, taking Louisiana as an example. The statute, which generally mirrors other states’, says that a contract by “an unemancipated minor may be rescinded on grounds of incapacity except when made for the purpose of providing the minor with something necessary for his support or education . . ..” Notice that the provision does not at all declare these contracts illegal. This is because in day-to-day life, minors do things that technically create contractual relationships, implied or explicit, all the time.
For example, if a 13-year-old minor child goes to the store to buy a pack of gum, the minor enters into a contract for sale for that pack of gum with the store. Similarly, when a minor navigates a stargazing or calculator app, they do so subject to the apps’ terms of service. Sure, these contracts are voidable and for good reason. You wouldn’t want a bad actor stargazing app developer to play gotcha and enforce a buried term of service against a minor. But because the agreements don’t present age-specific risks, it is in everyone’s best interest to continue to allow the minor to buy the pack of gum, browse the stargazing app, and use the calculator app. Now, if the minor decided to buy a bottle of wine instead and has a fake ID, that contract for sale presents age-specific risks, and the parent might want to void the sale (which would also be illegal on other grounds). But this illustrates perfectly why the existence of a voidable contract itself is beside the point. They exist, they’re inevitable, and their existence is not at all the problem.
- Parental consent to download doesn’t supplant apps’ terms of service. The goal of the advocates is to shunt liability, and in the process, they are asking lawmakers to think of app developers as subsidiaries of app stores. Forcing parents into a contract with the app stores, they argue, is the same thing as a contract with all the developers with apps on the store. That’s wrong. App developers are not subsidiaries of the app stores.
If a parent signs a contract with an app store on behalf of their minor child, they now have a contractual relationship with the app store. They do not have a contractual relationship with an independent developer of any of the millions of apps that may be on that store. Thus, eliminating any contract between a minor and the app stores would not prevent any contracts between minors and developers in exchange for access to any kind of content through an app. Suggesting otherwise is misleading.
If lawmakers wanted this, they would have to do it for all apps on the App Store. This would be a bad idea because it would effectively eliminate the ability for anyone under 18 to use an app. Navigating any online service, whether through an app or a website, requires adherence to some sort of terms of service. Even if a minor does so under a blanket authorization signed by a parent or via a family profile set up by the parent, anything the minor does inside the app is nonetheless subject to the minor’s agreement to the app’s terms. This is inevitable, unless lawmakers want minors never to touch a smart device and for guardians to navigate the apps on their behalf. As a result, mandating parental consent at the app store level does nothing to prevent minors from entering into contracts in order to access content in apps.
- Requiring another parental contract would be superfluous and annoying. The advocates want policymakers to mix up parental controls tied to content with those tied to privacy mandates. Parents currently have tools to stop their kids from downloading inappropriate content without permission. Likewise, the federal Children’s Online Privacy Protection Act (COPPA) requires verifiable parental consent (VPC) prior to collecting any personal information about a child. The App Store Accountability Act would only add another layer of permission and red tape entirely unrelated to controlling access to sensitive content or protecting privacy.
Similarly, app stores are not in a position to police apps with mixed content, like Netflix. Netflix carries kids’ content in addition to content that may be inappropriate for certain age groups. Parental consent to download that app in the first place does nothing to help a minor access age-appropriate content while shielding them from inappropriate content within the app. That level of granular control is better accomplished via family accounts, especially since users can access Netflix’s content across various distribution methods, including TVs and smart devices. More importantly, mandating consent to download Netflix does nothing at all to put parents in control of their kids’ access to potentially inappropriate content and only adds another layer of red tape.
For lawmakers being asked to back these bills, we strongly encourage you to fast-forward through this debate about enforceability of contracts entered into by minors. It’s a red herring. Instead, policymakers should focus on how the bills would impose unnecessary costs on app makers, parents, and everyone else in the ecosystem that is uninvolved with adult content, social media platforms, or kid-directed content.