ICO Age Appropriate Design

The UK's data protection censors at the Information Commissioner's Office ICO have generated a disgracefully onerous red tape nightmare called the Age Appropriate Design Code that requires any internet service that provides any sort of grown up content to evaluate the age of all users so that under 18s can be protected from handing over sensitive ID data. Of course the age checking usually requires all users to hand over lots of sensitive and dangerous ID data to any website that asks.

Now the ICO has decided to make these requirements of porn sites given that they are often accessed by under 18s. ICO writes:

Next steps

We will continue to evolve our approach, listening to others to ensure the code is having the maximum impact.

For example, we have seen an increasing amount of research (from the NSPCC, 5Rights, Microsoft and British Board of Film Classification), that children are likely to be accessing adult-only services and that these pose data protection harms, with children losing control of their data or being manipulated to give more data, in addition to content harms. We have therefore revised our position to clarify that adult-only services are in scope of the Children's code if they are likely to be accessed by children.

As well as engaging with adult-only services directly to ensure they conform with the code, we will also be working closely with Ofcom and the Department for Digital, Culture, Media and Sport (DCMS) to establish how the code works in practice in relation to adult-only services and what they should expect. This work is continuing to drive the improvements necessary to provide a better internet for children.

The ICO issued the code on 12 August 2020 and it will come into force on 2 September 2020 with a 12 month transition period.

Information Commissioner Elizabeth Denham writes:

Data sits at the heart of the digital services children use every day. From the moment a young person opens an app, plays a game or loads a website, data begins to be gathered. Who's using the service? How are they using it? How frequently? Where from? On what device?

That information may then inform techniques used to persuade young people to spend more time using services, to shape the content they are encouraged to engage with, and to tailor the advertisements they see.

For all the benefits the digital economy can offer children, we are not currently creating a safe space for them to learn, explore and play.

This statutory code of practice looks to change that, not by seeking to protect children from the digital world, but by protecting them within it.

This code is necessary.

This code will lead to changes that will help empower both adults and children.

One in five UK internet users are children, but they are using an internet that was not designed for them. In our own research conducted to inform the direction of the code, we heard children describing data practices as nosy, rude and a bit freaky.

Our recent national survey into people's biggest data protection concerns ranked children's privacy second only to cyber security. This mirrors similar sentiments in research by Ofcom and the London School of Economics.

This code will lead to changes in practices that other countries are considering too.

It is rooted in the United Nations Convention on the Rights of the Child (UNCRC) that recognises the special safeguards children need in all aspects of their life. Data protection law at the European level reflects this and provides its own additional safeguards for children.

The code is the first of its kind, but it reflects the global direction of travel with similar reform being considered in the USA, Europe and globally by the Organisation for Economic Co-operation and Development (OECD).

This code will lead to changes that UK Parliament wants.

Parliament and government ensured UK data protection laws will truly transform the way we look after children online by requiring my office to introduce this statutory code of practice.

The code delivers on that mandate and requires information society services to put the best interests of the child first when they are designing and developing apps, games, connected toys and websites that are likely to be accessed by them.

This code is achievable.

The code is not a new law but it sets standards and explains how the General Data Protection Regulation applies in the context of children using digital services. It follows a thorough consultation process that included speaking with parents, children, schools, children's campaign groups, developers, tech and gaming companies and online service providers.

Such conversations helped shape our code into effective, proportionate and achievable provisions.

Organisations should conform to the code and demonstrate that their services use children's data fairly and in compliance with data protection law.

The code is a set of 15 flexible standards 203 they do not ban or specifically prescribe 203 that provides built-in protection to allow children to explore, learn and play online by ensuring that the best interests of the child are the primary consideration when designing and developing online services.

Settings must be high privacy by default (unless there's a compelling reason not to); only the minimum amount of personal data should be collected and retained; children's data should not usually be shared; geolocation services should be switched off by default. Nudge techniques should not be used to encourage children to provide unnecessary personal data, weaken or turn off their privacy settings. The code also addresses issues of parental control and profiling.

This code will make a difference.

Developers and those in the digital sector must act. We have allowed the maximum transition period of 12 months and will continue working with the industry.

We want coders, UX designers and system engineers to engage with these standards in their day-to-day to work and we're setting up a package of support to help.

But the next step must be a period of action and preparation. I believe companies will want to conform with the standards because they will want to demonstrate their commitment to always acting in the best interests of the child. Those companies that do not make the required changes risk regulatory action.

What's more, they risk being left behind by those organisations that are keen to conform.

A generation from now, I believe we will look back and find it peculiar that online services weren't always designed with children in mind.

When my grandchildren are grown and have children of their own, the need to keep children safer online will be as second nature as the need to ensure they eat healthily, get a good education or buckle up in the back of a car.

And while our code will never replace parental control and guidance, it will help people have greater confidence that their children can safely learn, explore and play online.

There is no doubt that change is needed. The code is an important and significant part of that change.

Elizabeth Denham, Information Commissioner Information Commissioner's Office,

Dear Commissioner Denham,

Re: The Draft Age Appropriate Design Code for Online Services

We write to you as civil society organisations who work to promote human rights, both offline and online. As such, we are taking a keen interest in the ICO's Age Appropriate Design Code. We are also engaging with the Government in its White Paper on Online Harms, and note the connection between these initiatives.

Whilst we recognise and support the ICO's aims of protecting and upholding children's rights online, we have severe concerns that as currently drafted the Code will not achieve these objectives. There is a real risk that implementation of the Code will result in widespread age verification across websites, apps and other online services, which will lead to increased data profiling of both children and adults, and restrictions on their freedom of expression and access to information.

The ICO contends that age verification is not a silver bullet for compliance with the Code, but it is difficult to conceive how online service providers could realistically fulfil the requirement to be age-appropriate without implementing some form of onboarding age verification process. The practical impact of the Code as it stands is that either all users will have to access online services via a sorting age-gate or adult users will have to access the lowest common denominator version of services with an option to age-gate up. This creates a de facto compulsory requirement for age-verification, which in turn puts in place a de facto restriction for both children and adults on access to online content.

Requiring all adults to verify they are over 18 in order to access everyday online services is a disproportionate response to the aim of protecting children online and violates fundamental rights. It carries significant risks of tracking, data breach and fraud. It creates digital exclusion for individuals unable to meet requirements to show formal identification documents. Where age-gating also applies to under-18s, this violation and exclusion is magnified. It will put an onerous burden on small-to-medium enterprises, which will ultimately entrench the market dominance of large tech companies and lessen choice and agency for both children and adults -- this outcome would be the antithesis of encouraging diversity and innovation.

In its response to the June 2018 Call for Views on the Code, the ICO recognised that there are complexities surrounding age verification, yet the draft Code text fails to engage with any of these. It would be a poor outcome for fundamental rights and a poor message to children about the intrinsic value of these for all if children's safeguarding was to come at the expense of free expression and equal privacy protection for adults, including adults in vulnerable positions for whom such protections have particular importance.

Mass age-gating will not solve the issues the ICO wishes to address with the Code and will instead create further problems. We urge you to drop this dangerous idea.

Yours sincerely,

Open Rights Group
Index on Censorship
Article19
Big Brother Watch
Global Partners Digital