With credit card companies pulling away from allowing age verification services to use credit cards for the stated purpose, the adult Internet is looking for workable alternatives. And First Amendment attorney Lawrence G. Walters believes he's developed one himself – a script by which a prospective adult surfer verifies his age by way of his own birthdate, under penalty of perjury, and based on suggestions found in federal law.
"Obviously, AVSs can no longer use (credit) cards for age verification," Walters said in a telephone interview of his in-testing project, with a working name of Birthday Verifier, "so they're required to eliminate AVS verification, but this provides the solution. They can go back to advertising age verification, and just use the card to verify the transaction. And it could save the AVS industry, and it gives the credit card industry something to point to."
As now formulated, the warning-page script Walters is developing and testing would require a would-be adult Web visitor or customer enter his birth date, under the penalty of perjury, which is checked automatically against the date he or she tries entering, "and if that person (verifies as) 18 or over, then access is allowed."
The script's precise language reads, "To enter our free areas, you must certify, under the penalties of perjury, your date of birth in the following form: 'I hereby affirm, under the penalties of perjury pursuant to 28 U.S.C. § 1746, that I was born on the following month, day, and year:'," followed by drop-down month-day-year boxes and a legal warning: "Note: Providing a false declaration under the penalties of perjury is a criminal offense. This document constitutes an unsworn declaration under federal law, and the user agrees that this transaction is governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You may submit a paper copy of this transaction and print this form for your personal records."
As a matter of fact, if you were now to visit XXXGoldContent.com, AmplandMovies.com, and BisexualBritni.com, you would see the Birthday Verifier script to verify your legal age before being allowed in. These three sites are among the testing sites for the new script.
Walters said the script remains in a testing phase, though version two has just been released to the test clients, including the version of the warnings and verification drop boxes described earlier. He also said he is negotiating "with a major AVS (service)" for them to buy the rights to the Birthday Verifier script technology.
"It'll either happen that way, or it'll happen by way of multiple licensing," he said. "The first version was good just to keep out minors, but if an AVS is going to use it, we believe a rock-solid argument is made if the person is trying to verify age by putting in an actual name into the electronic signature."
Walters based his idea off a pair of federal laws, the so-called E-Sign Act, signed by then-President Bill Clinton, which allowed government and private contracts to be signed electronically; and, the Unsworn Declarations Act, which allows individuals to verify information under federal law without being sworn by a notary. "And they kind of mesh together in allowing an individual to submit their birth date under penalties of perjury," he said.
Walters said that the idea began coming to him as he spotted the coming pullback of the credit card industry from age verification servicing in the past several months, and began hunting through state and federal laws for answers.
"I've been in court defending Webmasters and trying to assert that click-if-over-18 is age verification," he said, "but I had a very difficult time convincing the courts that this was an appropriate means of age verification. So I wanted something a little stronger. We came up with this script that requires a user to put in his or her birth date, which checks against the current dat, and if that person is at least 18, then access is allowed."
This may sound like a commonsense solution, but Walters pointed out quickly that most patented ideas "are very obvious but haven't put together yet." He said once he saw the potential for Birthday Verifier's composition and operation, he got the script's warning page idea copyrights and released the script in a test version to several of his clients, which they can use for either free sites or free tours.
"This is at least a good-faith method for determining age," he said. "The (Child Online Protection Act) provided for various means that are acceptable, one being credit cards, another being age verified passwords, any other reasonable means allowed by current technologies, as the law says. It's that third exception that we're trying to take advantage of, and provide Webmasters with that good-faith means of age verification."
Concurrently, Walters continued, the burden would fall to the surfer in question, if it ever came to a court issue in which the surfer first tried to deny trying to access an adult site, or had tried falsely to get access, if a Webmaster were to be accused of allowing underage access despite the Birthday Verifier showing the Webmaster had done, consciously, no such thing.
"The courts are very sensitive to perjury," he said. "They're going to be very concerned with people committing perjury to get access to adult material. You have a minor who is committing perjury to try to get access to adult materials, that's hardly a sympathetic plaintiff. And we think the courts would ultimately side with the Webmaster in that situation."
Coincidentally, Walters said, Birthday Verifier would also solve a critical question involving undercover investigators: it could help them, in the breach, determine a little more quickly whether client Websites are indeed allowing too many minors access.
"It kind of helps where you have the undercover cop trying to pose as a minor," he said. "with the alternative of putting in a false birthdate and committing a federal offense trying to pose as a minor, or they tell the truth. Our hope is that it would keep the investigators away once they realize these good faith efforts are being taken."
One very critical question with the script might seem to be privacy protection. Walters said it would be up to client Websites to enforce their privacy policies, including how they want to deal with information collected, minimal though it might be, through Birthday Verifier entries.
"The script allows the option of collecting logs with birth date and name information," he said, "or it can be disabled. It will be up to the Webmaster how they want to treat the user information.
"But I can say the law does not require the Webmaster to retain this information for specific periods of time," Walters continued. "There is a provision that requires upon the user's request a paper copy of ther transaction so it may be good practice to preserve the information for a short period of time to see if the user is going to require a paper copy."
