Recently there has been a flurry of legislation targeting mobile app stores and app developers, requiring, among other obligations, verifying a user’s age. To date, Alabama, California, Louisiana, Texas and Utah have passed this type of law.
Alabama’s, Louisiana’s and Utah’s laws only apply to phones or “general-purpose” tablets. Similarly, California’s law only applies to computers, mobile devices and any other general-purpose computing devices.
The scope of the Texas law, the App Store Accountability Act, however, is far broader and may be interpreted to include certain video game consoles.
The Texas law applies to “mobile devices,” defined as “portable, wireless electronic devices, including a tablet or smartphone, capable of transmitting, receiving, processing, and storing information wirelessly that runs an operating system designed to manage hardware resources and perform common services for software applications on handheld electronic devices.”
Unlike the laws of the other states, the Texas law is not explicitly limited to general-purpose devices. To distinguish between a general-purpose device and a different type of device, courts have interpreted the term “general-purpose device” to mean a device that is designed to accomplish varying tasks and support different kinds of applications, rather than a device that is limited to a specific function. For example, the court in Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008), reasoned, “[A] general purpose computer ‘in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.’” (quoting WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1348 (Fed. Cir. 1999)).
The Texas law lists tablets and smartphones as examples of devices that are in scope, leaving the law open to apply to other types of portable, wireless electronic devices, such as those designed specifically for video gaming purposes.
Portable gaming consoles that use an operating system to function, are capable of processing information wirelessly, and perform common services for software applications (such as through an app and game store) could be game for enforcement under the Texas app store age assurance law.
Texas law outlines how laws should be construed, including that “if a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art,” and “in interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”
It remains to be seen if the words used in the law, such as the definition of “mobile device,” will be further interpreted by experts, but the history of the law illuminates the scope of the intent. In the law’s analysis, the author and sponsors stated, “Growing concerns regarding the rise of social media and its pervasiveness in the lives of children and teens leave parents in the position of grasping for the best ways to protect their children. Unlike brick and mortar stores which must verify a consumer’s age before the purchase of age-restricted products such as alcohol and cigarettes, minors are currently able to navigate through the digital world without such parameters.” This intention was not revised through the law’s drafting and eventual enrollment. “Digital world” is quite broad, while the example of “social media” is narrower. That said, we note that Texas has a social media law specific to minors, the Securing Children Online through Parental Empowerment Act, which does not explicitly exempt video games (unlike other state social media laws) and even includes “video games” as part of the law’s prescribed joint committee study on the effects of media on minors.
As to enforcement, while a preliminary injunction initially prevented the law from being enforced, this injunction was recently lifted, permitting the Texas attorney general to move forward with enforcement. The challengers to the law asked the Supreme Court, through an emergency application, to reinstate the injunction until the Fifth Circuit could decide the case. The Supreme Court declined the requests in unsigned, single-sentence orders that did not address the law’s merits or constitutional issues.
While the Texas attorney general has yet to file an enforcement action under the law, video game console operators should evaluate how the Texas law may apply to their console’s app and game store. BakerHostetler’s attorneys focused on interactive entertainment and video games continue to monitor these laws, not just for app developers that design games for mobile devices but also for video game console operators.
For more, see our An App Developer’s Guide to App Store Age-Assurance Laws.
