California Law Attempts to Protect our Youths Online

A few weeks ago California Governor Jerry Brown signed a new bill (SB 568) consisting of two distinct laws that will take effect January 1, 2015. The bill’s first law attempts to prevent certain online advertisements from reaching the eyes of minors. Any website or mobile application that is directed to minors, or has knowledge that minors use its service, are prohibited from marketing items including alcohol, firearms, tobacco/cigarettes, drug paraphernalia, UV tanning devices, spray-paints, tattoos and fireworks.

In my opinion, the implementation and regulation of this law will lead to more problems than it will solve. The language of this law is so over-inclusive and ambiguous that it fails to create a clear picture for website operators/advertisers to rely on. No where in the law does it require a website to obtain the ages of its users and without such information how are advertisers supposed to know which websites the law is covering? I’m not so sure that advertisers of the ‘black listed’ items intentionally direct their advertisements at kids in the first place, however, I do understand the desire to filter certain aspects of Internet use when it comes to children.

The bill’s second law, the so-called ‘Online Eraser’ law, requires social media type websites (Facebook, Twitter, MySpace and the like) and applications to allow the removal of public content (post, tweet, etc.) upon request of registered users under the age of 18. Again, I completely understand the rationale behind this law (attempting to help a user erase an embarrassing tweet/post from their youth), but it simply will not work as is. A number of commentators have written the law off as ineffective due to the absence of any language that mentions reposts, retweets, or copies of the original. So although the user may be granted a takedown of their original post the law does nothing to help them further. Considering the user is going through the trouble to takedown such ‘regrettable posts’ it seems only logical that the content will be interesting enough to become a 3rd party’s repost or retweet. Recent court decisions have granted First Amendment protection to specific characteristics of social media so even if the law did refer to these subsequent posts aren’t we clearly venturing into First Amendment territory? Critics to this new California law believe that we are.

Another day, another proposed piece of social media legislation

This one comes from the great state of Virginia.  Virginia lawmakers are considering a bill to permit parental access to a deceased child’s digital accounts. The bill defines digital accounts as “blogging, e-mail, multimedia, personal, social networking, and other online accounts..”  The bill mirrors legislation other jurisdictions are considering, which are designed to grant survivors the benefits of a decedent’s social media estate.  The Virginia Law, however, differs in that it is limited to minor decedents, most of whose estates may not have the financial value of adults who have cultivated a profitable empire through blogging, twitter or the like.  Though not expressely stated, one can assume that Virgnia lawmakers, in adopting the law, are hoping to provide parents with information of value concerning instances of “cyber-bullying”  or unintended consequence of social interaction.  Minors can circumvent the measure through through language in a will or other trust instrument.

Of particular note is the drafting of the bill, which  leaves room for future, anticipated or perhaps even unforeseeable expansion of social media, by including in its definition of digital accounts, “other on-line accounts or comparable items as technology develops.”  The language provides lawmakers with a future-catchall and will potentially guard against the all to common problem of laws playing catch-up with rapid technological advances.  One has to wonder, however, if such broad language could survive a “void for vagueness” challenge.