Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute

In Opposition to SB 396, “The Social Media Safety Act”

March 28, 2023

Arkansas Senate Insurance & Commerce Committee

Chairman Hill and members of the committee,

My name is Josh Withrow, and I am a fellow with the Technology and Innovation Policy team at the R Street Institute, which is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including the technology and innovation sector.

While in pursuit of the meritorious goal of protecting minors, SB 396 would subject every social media user in Arkansas to intrusive age verification that would compromise the ability of adults and children alike to speak online anonymously. In so doing, the bill imposes a barrier to speech that is very likely to be found unconstitutional.

Many websites, including most social media sites, already impose self-verification of age in order to restrict membership or access to certain categories of content. The problem with mandating that sites actually verify the precise age of each user is that every means of doing this either involves producing documentation that de-anonymizes the user, or submitting to other intrusive (and often imprecise) means of verification such as biometric scanning.

Obviously, sites cannot determine which users are minors unless they verify the age of every user. Even if sites were to avoid deanonymizing users by employing something like facial scans to verify age, parents or guardians who wish to allow their teens to access social media would presumably be required to prove their identity in a more direct way. A poll run by the Center for Growth and Opportunity at Utah State University shows that two thirds of respondents were uncomfortable with sharing ID documentation to access social media sites, and nearly 70 percent were uncomfortable with their children having to provide either ID or biometric information.[1] This illustrates how mandatory age verification is likely to dissuade many users, adult or minor, from accessing social media at all.

The U.S. Supreme Court struck down the majority of the Communications Decency Act of 1996, on similar grounds as would likely be the case for SB 396. In that case, the majority held that making websites liable for verifying the age of all its users would place “an unacceptably heavy burden on protected speech.”[2] In more recent cases, courts have noted that content-filtering software that is already available to parents would provide an effective means of restricting minors’ access to undesired internet content and that further government-imposed barriers are an undue barrier to speech.[3]

Moreover, the ability of minors to access non-obscene content without parental consent has been upheld as a First Amendment right in itself, and that right carries through to internet services. Justice Antonin Scalia, in striking down a California law that required parental permission for minors to buy violent video games, noted that “whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Scalia continued: “[i]t does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent…[4]

Lawmakers who are concerned about the impact of social media on our youth would do better to focus on solutions that do not involve simply placing new government barriers to access. A Florida proposal that would make discussions about the benefits and drawbacks of social media use a part of school curricula is one possible example.[5] But SB 396 substitutes government mandates for parental responsibility in protecting kids online and therefore we recommend that legislators oppose it.

Thank you for your time,

Josh Withrow
Fellow, Technology & Innovation Policy
R Street Institute
(540) 604-3871
[email protected]

[1] Taylor Barkley, “Poll: Americans Don’t Want to Share Their Photo ID to Tweet,” The Center for Growth and Opportunity at Utah State University, Feb. 1, 2023. https://www.thecgo.org/benchmark/poll-americans-dont-want-to-share-their-photo-id-to-tweet.

[2] Reno v. ACLU, 521 U.S. 844 (1997), U.S. Supreme Court, June 26, 1997. https://supreme.justia.com/cases/federal/us/521/844.

[3] Ashcroft v. ACLU, 542 U.S. 656 (2004), U.S. Supreme Court, June 29, 2004. https://supreme.justia.com/cases/federal/us/542/656.

[4] Brown et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011). U.S. Supreme Court, June 27, 2011. https://supreme.justia.com/cases/federal/us/564/786.

[5] SB 52, An act relating to student use of social media platforms, Florida State Senate. https://www.flsenate.gov/Session/Bill/2023/52.