Colorado bill would ban users from talking about marijuana and medication, compromise law enforcement investigations, and stop people from knowing when they’re being investigated

One social media bill proposed in Colorado has some potentially disastrous quirks. SB 24-158 would make it unlawful to talk positively about marijuana (or legal medications) online—in the same state where the government auctioned off weed-themed license plates. It would also interfere with law enforcement investigations and prevent users from knowing if and when they are being investigated.

Colorado is just the latest of many states to consider forcing social media platforms to verify user age via government identification, face scans, or Social Security numbers. But small provisions in the bill have the potential to cause massive problems.

Much like other age-verification bills, if enacted, SB 24-158 would force social media platforms of all sizes to use a “commercially reasonable process” for age verification. This means every user in Colorado would have to upload their most sensitive information to every platform they use. Although the bill requires platforms to dispose of this information once a user’s age is verified, the rule does not apply to third-party verifiers—rendering enforcement against them nearly impossible. Further, it doesn’t stop nefarious actors who would seek to hack such valuable information.

Strangely, while SB 24-158 contains several provisions to protect data privacy and security, it also mandates that social media companies retain “any data and metadata concerning users’ identities and activities” for one year—an atrocious security practice that would attract hackers and create more opportunities for data breaches. Instead, the government ought to encourage data minimization to protect user information.

This bill, like the others, faces constitutional issues. The long list of speech-based exemptions for what it applies to, including “selling enterprise software to businesses, governments, or nonprofit organizations,” creates First Amendment problems by including some speech and excluding other speech for no clear reason. Courts have held that age verification infringes on the constitutional right to anonymous speech, the right to access free speech, and the right of people to have their speech accessed by others. The legislation also compels adults to have access to parental controls for their minors online. This inherently requires explicit identity verification to prove guardianship of the child. These provisions mirror those of Utah’s social media age-verification law, which the state is attempting to repeal and replace because it fared so poorly in court.

Age verification is also expensive for businesses, with estimates at the low end suggesting it would cost tens of cents per verification. For instance, AllTrails—a social media collaboration site for hikers and off-roaders—has 60 million users worldwide. Assuming just 1 million of them live in or visit Colorado, it would cost AllTrails a minimum of $100,000 to comply with the bill’s provisions.

Next, SB 24-158 requires platforms to publish their user policies. All large (and many mid-sized) platforms already do this. The bill would require them to provide contact information so that users can ask questions about their policies along with instructions on how to flag problems with other users’ content.

But here’s where the bill strays from the norm and becomes quite bizarre.

It requires all platforms to state that “the use of the social media platform for the promotion, sale, or advertisement of any illicit substance” is prohibited and that users who violate this rule must be removed. An “illicit substance” is described in the bill as “a controlled substance, as defined in section 18-18-102.” Well, § 18-18-102 defines a “controlled substance” as “a drug, substance, or immediate precursor included in schedules I through V of part 2 of this article, including cocaine, marijuana, marijuana concentrate, cathinones, any synthetic cannabinoid, and salvia divinorum.” Basically, the Colorado Legislature is trying to force social media companies to ban the promotion of marijuana. And because what constitutes “promotion” remains undefined, the bill would likely force platforms to remove all pro-marijuana free speech in a state where recreational use is legal.

Things only get weirder from there. Schedules I through V also include completely legal prescription drugs like anti-anxiety medications and cough syrup, which would make it unlawful for businesses to promote them for sale or even for regular people to talk about their benefits online. This clearly violates the First Amendment, as the bill is unconstitutionally narrow in scope. Basically, if speaking highly of or advertising these substances were truly dangerous, the state would have banned advertising in all forms (e.g., print, television, digital).

Platforms must also submit annual reports to the attorney general that include any changes to their policies, detailed descriptions of their content moderation practices, counts of moderated content, and many other details. The reports will undoubtedly create compliance nightmares for smaller platforms like AllTrails, which has less than 250 employees. This rule even applies to online forums that are not formal businesses, such as the American Cancer Society’s online Cancer Survivor Network or the MyFibroTeam support group. Because there is no size limit on platforms, this bill would affect even the smallest online forum with users in Colorado.

These reports must also include the number of times the platform reported content to law enforcement in Colorado, which law enforcement should already have. The same goes for the number of times Colorado law enforcement asked the platform for further information. The onus should be on the government to report this data, not on the platform.

This is a problem in and of itself, but the requirement could also potentially compromise law enforcement investigations. All reports filed to the attorney general will become public so that anyone can see and search them; however, SB 24-158 requires platforms to disclose “the nature of each violation referred to law enforcement agencies in Colorado.” Law enforcement may not want this information disclosed, and for good reason: It can compromise ongoing investigations and lead to the concealment or destruction of evidence. Unlawful activity sometimes happens on social media platforms, and police efforts to investigate, track, and monitor this activity could be compromised—not to mention the potential damage to innocent people’s reputations should information about these cases be disclosed under the law.

The bill also violates Fourth Amendment principles by asserting that “a social media company shall not alert a user to the fact that a law enforcement agency is investigating the user’s activity and account.” This means that if someone is unaware the government is investigating them due to what is, in effect, a legislatively mandated gag order, they cannot fight government actions or exercise their rights. While these orders may be necessary in certain cases, it shouldn’t be an across-the-board call.

As Microsoft Vice President Tom Burt explained to The Washington Post, “[a]cross all the rest of society, it’s understood that government doesn’t get to take your stuff, doesn’t get to come in and into your house, doesn’t get to break into your file folders or your lock box at the bank without a warrant. And you get to know about that warrant and you get to exercise your legal rights.” This was in reference to a Washington Post report about law enforcement overusing secrecy orders when obtaining user information from social media platforms. Not only does the practice itself deny due process to those being investigated, but SB 24-158 would effectively mandate it. Civil society organizations routinely oppose this practice due to its infringement on human rights.

Age-verification laws are failing left and right in courts and have introduced enough constitutional and cybersecurity problems already. For its part, Colorado’s proposal would create unbelievable law enforcement problems and prevent users from exercising their right to free speech online. Lawmakers should not hamstring Americans’ First and Fourth Amendment rights while also harming the ability of law enforcement to investigate crimes.