Tort Liability for Failure to Age Gate: A Promising Regulatory Response to Digital Public Health Hazards

Abstract Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage of an evolving regulatory challenge. These advantages include avoiding section 230 preemption, mitigating First Amendment barriers, ensuring fit with existing tort doctrine, assessing technical viability, and minimizing harms to innovation. The relative insulation of the tort system from industry manipulation as compared to legislative processes, and consistency with the need to balance prevention with access in regulating addictive technologies are added bonuses.