Senate to debate Hawley's GUARD Act and its sweeping AI restrictions for minors
When looking at Sen. Josh Hawley's (R-MO) GUARD Act (S. 3062 - Guidelines for User Age-verification and Responsible Dialogue Act), the puns write themselves. By requiring age verification for some AI products and an outright prohibition of others for minors, the bill would place a mouth GUARD on Americans' First Amendment rights. Its vague definitions and mandates would catch smaller AI companies off GUARD. And the costs of compliance would serve as a bodyGUARD for large, established players, shielding them from the very competition that Sen. Hawley claims to champion.
The Senate Judiciary Committee is scheduled to hold a markup on the GUARD Act tomorrow morning. The bill is meant to protect children, but its mandates for AI chatbots and AI "companions" will do more harm than good.
The legislation mandates that all users create an account and verify their age to access AI chatbots. Covered platforms could face criminally liability for prompting minors to engage in or create sexual content, or for encouraging anyone to hurt themselves or others. Minors are expressly prohibited from using AI companions altogether.
The GUARD Act violates the First Amendment by making Americans' access to AI chatbots contingent on age verification, which will likely require users to provide a government-issued ID or other personal data. As we have seen with state age-verification laws directed at social media platforms and app stores, these mandates face a steep constitutional hurdle. The prohibition on kids using AI companions would likely also violate the First Amendment, according to Corbin Barthold, internet freedom counsel at TechFreedom. In a recent paper, Barthold explains that
These are content-based regulations. The government is seeking to wall minors off from a certain kind of speech-that it fears is too intimate, too manipulative, or too persuasive for minors to handle. These bills therefore trigger strict scrutiny-a standard they cannot meet. It is far from clear that the state has a compelling interest in limiting minors to speech legislators deem emotionally safe. And even if it does, the bills are overbroad.
The definition of "AI companions" is curious. The bill defines them as any AI chatbot that "provides adaptive, human-like responses to user inputs" and "is designed to encourage or facilitate the simulation of interpersonal or emotional interaction, friendship, companionship, or therapeutic communication." Such subjective language creates a regulatory minefield that isn't based on any objective technical benchmarks.
This kind of vague terminology will be even harder for smaller players to navigate. Unlike established firms, they don't have large legal departments at their disposal to avoid the $100,000 fines contained in the bill. Age-verification mandates add an additional layer of costs in terms of operation and reputation. Smaller players must either invest to secure these systems themselves or contract with a third-party verification service. Adult users will also be less willing to hand over IDs and biometric identifiers to lesser-known AI platforms.
Sen. Josh Hawley has positioned himself as a leading critic of "big tech" and a proponent of reinvigorating antitrust law. Ironically, his GUARD Act would help entrench the very incumbents that he seeks to curtail.
More concerning is the reality that age-gating and similar prohibitions push users and children to darker corners of the internet. Growing researchshows that age-verification mandates drive users to non-compliant sites and platforms where they encounter more problematic content.
Ultimately, the Guard Act shows a blatant disreGUARD for the First Amendment, privacy, and competition.
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