Utah’s Social Media Regulation Act: First Amendment & Data Privacy Concerns￼April 6, 2023
Social Media Regulation Act
On March 23, 2023, Utah became one of the first states in the country to enact legislation that would extensively regulate how minors can use social media. The Social Media Regulation Act will go into effect on March 1, 2024 and will impose a two-fold requirement on social media companies, as well as minors. First, social media companies will now be required to verify the age of any account user and minors will be required to obtain parental consent before signing up for a social media account. Additionally, unless minors obtain their parent’s consent, they will be foreclosed from using a social media site from the hours of 10:30pm to 6:30am. Second, the legislation will require social media companies to “ensure that they are not designed to cause minors to become addicted to them and gives Utah minors the right to sue social media companies if they believe they’ve become addicted to or otherwise somehow harmed by a social media platform they have an account on.”
As justification for this sweeping law, legislators have cited studies that show the detrimental impact of social media on children. This is evidenced by the fact that nearly 45% of teens have stated they are online constantly. Further, researchers from the Columbia University Clinic of Anxiety and Related Disorders have stated that constant social media use can be a catalyst for “social isolation” and can lead to children “having a false sense of how the world really works.”
While this law is in many ways novel, it is worth noting that “[c]ompanies are already prohibited from collecting data on children under 13 without parental consent under the federal Children’s Online Privacy Protection Act.” Yet, proponents of the Utah law have stated that current age verification processes are easy to get around. Thus, it seems that the Social Media Regulation Act will force companies to have stricter verification process that go beyond the simple “You must be 18 years old to access this website” clickwrap.
Data Privacy & First Amendment Concerns
Unfortunately, the stricter verification process in itself has potential problems. In particular, civil liberties groups have claimed that requiring government-issued identification as a method of verification leads “towards an internet where our private data is collected and sold by default.” Moreover, “there’s no way for a website visitor to be certain that the data they’re handing over is not going to be retained . . .” and there is always the risk that “thieves will steal it.” This concern is only compounded by the fact that the data privacy regulatory system in the United States (U.S.) is very balkanized. Unlike the European Union’s General Data Protection Regulation which allows individuals to “effectively own their personal information and thus presumptively have the legal right to control it . . .” – the U.S. has no comparable law. Rather, the U.S. employs a multitude of different laws such as the Graham-Leach-Bliley Act or Family Educational Rights and Privacy Act. While these laws “prevent misuse of certain categories of personal information . . .”, they are only “applicable to specific industries and types of institutions.” Thus, the current U.S. system can leave consumers with little control over how and who can collect their data.
Thus, there is a concern that “identity verification rules [will] take away consumers’ rights to use these services anonymously . . .” by requiring users to input a valid form of identification and will ultimately “suppress everyone’s speech.”
In addition to data security concerns, the verification process also potentially raises issues surrounding accessibility and the First Amendment. For example, the Electronic Frontier Foundation has argued that laws such as this can disproportionally affect lower-income and marginalized communities that often have many “residents without a form of government-issued identification.” As for the First Amendment concerns, it is settled law that the Constitution protects individuals right to publish anonymously in the literary and political realms. Proof of the importance the Framer’s placed on right of anonymity is evident by the fact that “arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names.” Thus, there is a concern that “identity verification rules [will] take away consumers’ rights to use these services anonymously . . .” by requiring users to input a valid form of identification and will ultimately “suppress everyone’s speech.”
While it is clear that social media is a double-edged sword that can be dangerous when used incorrectly – the question still remains on how to best balance the interests of the parties involved. It has long been established that “the interest[s] of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized[.]” However, while it is important to give parents the tools necessary to safely rear their children, it is paramount that legislators weigh the countervailing costs of legislation such as this. One has to look no further than the debacle over TikTok’s use of U.S. consumers’ data to understand the concern about giving social media platforms easier access to data. Regardless of whether one agrees with the actions of the Utah legislature, the questions posed by their course of action in regards to child safety, data privacy, and First Amendment rights are questions worth grappling with.
Andreas C. Myers
Andreas is a first-generation college graduate and law student from Davidson, North Carolina. Andreas graduated from the University of North Carolina – Charlotte with a B.A. in Political Science and a Minor in Legal Studies. In law school, Andreas is the Treasurer of the Hispanic Latino Law Students’ Association and a staff member on the North Carolina Journal of Law & Technology.