April 28, 2023

Utah Leads Efforts to Limit Access to Social Media

Catherine M. "Cathy" Brennan

Since the explosion of use of social media platforms some twenty years ago, policy makers have expressed concern about the negative effects that flow from the use of these platforms. Every state in the country has laws on the books that criminalize "distracted driving," which covers the use of mobile devices to log onto these platforms. The next frontier of addressing the social ills wrought by unfettered social media use appears to be the harm to young people caused by the technology. It semes clear that use of social media platforms has increased significantly over the law few years. According to Common Sense Media, a nonpartisan policy think tank that focuses on technology and youth, the average teenager logged more than 8 hours of daily screentime in 2021. Several states and the federal government are now taking aim at this explosion in screen time, with states leading the effort to limit and outright ban access to social media by young people.

In March, Utah became the first state to restrict people under the age of 18 from using "social media" without parental consent. Senate Bill 152, which takes effect March 1, 2024, imposes a curfew on social media use from 10:30 p.m. to 6:30 a.m. It further requires social media companies to grant a parent or guardian access to their child's social medial accounts.

The Utah law requires rulemaking to establish processes or means by which a social media company may meet the age verification requirements, acceptable forms or methods of identification, and requirements for providing confirmation of the receipt of any information provided by a person seeking to verify age. The rulemaking will also address processes or means to confirm that a parent or guardian has provided consent for the minor to open or use an account and requirements for retaining, protecting, and securely disposing of any information obtained by a social media company or its agent because of compliance with the requirements.

The law permits the Utah Attorney General to sue social media companies for violations. Further, private individuals may sue social media companies for violations of the law, with $2,500 in statutory damages available for each violation along with attorneys' fees and actual damages.

Arkansas has passed a similar measure, which the governor signed into law in April. The Arkansas law takes effect September 30, 2023. Connecticut, Minnesota, New Mexico, Oregon, Nevada, New Jersey, Texas, Ohio and Louisiana have also considered similar bills. The Ohio effort was part of the Governor's executive budget submitted in February. A Maryland effort failed to pass out of committee.

It is likely that the social media bans will be challenged by civil rights attorneys claiming that these laws violate the First Amendment. In an open letter to the Utah governor, the Electronic Frontier Foundation ("EFF") raised the First Amendment issue, but also flagged the violation of privacy that results from social media companies collecting more detailed information on users in order to be able to effectively screen out minors. The laws, the EFF argues, effectively create a large database of information about minors, thus exposing more information about the minors to social media companies than those companies would otherwise have.

These efforts at the state level track those in Congress, where the Kids Online Safety Act ("KOSA") is currently under consideration. With bipartisanship sponsorship, KOSA would give parents more controls to protect their children from addictive product features.

Hudson Cook, LLP provides articles, webinars and other content on its website from time to time provided both by attorneys with Hudson Cook, LLP, and by other outside authors, for information purposes only. Hudson Cook, LLP does not warrant the accuracy or completeness of the content, and has no duty to correct or update information contained on its website. The views and opinions contained in the content provided on the Hudson Cook, LLP website do not constitute the views and opinion of the firm. Such content does not constitute legal advice from such authors or from Hudson Cook, LLP. For legal advice on a matter, one should seek the advice of counsel.
© 2024 Hudson Cook, LLP. All rights reserved.