R Street Testimony in Opposition to the Alaska Social Media Regulation Act
Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute
In OPPOSITION to HB 271, “The Alaska Social Media Regulation Act.”
March 8, 2024
Alaska House Labor & Commerce Committee
Chairman Sumner 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 social media use can certainly pose some risks – as well as benefits – for children and teens, the methods by which this legislation attempts to address these risks would almost certainly be found unconstitutional on several different counts. Aside from First Amendment considerations, the approach taken in HB 271 would also represent a tremendous government intrusion into decision making about youth access to online speech that ought to be left to individual families and parents.
The text states that a social media platform must verify the age of its users in order to prevent anyone under the age of 18 from creating a profile without parental or guardian consent.[1] In order to give such consent, a parent or guardian would have to verify their identity with the social media platforms presumably via a government ID or some other form of documentary verification.
The legal definition of a “social media platform” according to the bill text is incredibly broad, and would effectively encompass any website that hosts any user-generated content. Indeed, the brevity and vagueness of this legislation is such that it would constitute one of the broadest and potentially most onerous internet regulations of any state proposal we have seen in recent years – a de facto age verification mandate for most of the internet.
One of the fundamental problems with mandatory age verification, as well as parental identity verification, is that it undermines users’ right to anonymous or pseudonymous speech, which in turn has the effect of dissuading users from speaking freely, or even initially joining a platform.[2] Sites obviously can’t know for certain whether any given user is a minor or not without checking the age of all users, so this necessarily burdens the access to their services for all users alike, adult or child. For these reasons, courts have repeatedly struck down previous attempts to mandate age verification for general-use platforms.
In a landmark case, the U.S. Supreme Court struck down most of the Communications Decency Act of 1996 because its age verification requirement for websites posed an undue burden on adult access to speech.[3] Their reasoning was that privately available software was as effective, if not more so, in protecting against minors accessing obscene content. This is even more true today, where effective parental controls are built into nearly every device and online platform, and there is a thriving market for effective, affordable third-party parental control software.[4]
A few years later, a second federal attempt at mandatory age verification, the Child Online Protection Act, was struck down because it violated the right to anonymous speech and because other, less-restrictive means to accomplish the same protections were easily available, such as third-party content filtering software.[5] Most recently, an Arkansas bill that required parental notification and age verification for minors to access social media has been enjoined by the courts and appears destined for a similar outcome to the prior cases.[6]
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.”[7]
HB 271’s curfew, which would mandate that social media platforms be made inaccessible to minors between the hours of 10:30 p.m. and 6:30 a.m., would likely be held as an even more direct violation of the First Amendment, as it represents a generalized ban on access to speech. Such a curfew would also have the perverse effect limiting Alaskan minors’ ability to interact with their peers across time zones.[8]
Mandating age verification tied to sensitive personal documents also creates novel data privacy and security concerns, as covered platforms would have to process and information that could include credit card numbers, drivers license and social security numbers, and birthdates. Notably, HB 271 does not even include any requirement that either the social media platforms or any third party service they might employ to verify users’ age must delete the documents or other sensitive data users share as part of the verification process. But even with a data minimization requirement in place, the threat of penalties for non-compliance with age restriction mandates creates a perverse incentive for online platforms to store more of this information, and for longer, than they would otherwise, providing a tempting honeypot of sensitive data for hackers to target.[9]
Naturally, many users are likely to be hesitant to provide this extra information to social media platforms. A poll run by the Center for Growth and Opportunity at Utah State University shows that two thirds of parents surveyed were uncomfortable with sharing ID documentation to access social media sites, and 70 percent were uncomfortable with their children being subjected to either documentary or biometric age verification.[10]
There are other practical issues with a parental notification requirement, such as the difficulty in ascertaining whether the person providing the permission is actually the minor’s parent or legal guardian, especially if the minor comes from a non-traditional family situation. For minors who have absent or abusive parents, access to social media may be a beneficial outlet which could be denied to them by neglect.
Finally, HB 271 requires that “A social media platform may not employ a feature, design, or mechanism that encourages or rewards a minor user’s excessive or compulsive use of the platform or that exploits the psychological vulnerabilities of a minor user.” This is an absurdly subjective and vague prohibition which, combined with the private right of action also enabled by the bill, would be impossible for covered platforms to know how to comply with.
The better approach to protecting children and teens from the very real dangers they may encounter online would be to focus on educating both parents and minors about online safety. The tools necessary to prevent minors from accessing unwanted sites and apps are easily available at the device, browser, and even network level.[11] But no level of parental controls and safeguards can replace basic education and communication so that kids – many of whom will inevitably outsmart whatever restrictions are placed upon them – can learn how to engage with the online world safely and responsibly.
Thank you for your time,
Josh Withrow
Fellow, Technology & Innovation Policy
R Street Institute
(540) 604-3871
[email protected]
[1] HB 271, “An Act relating to social media and minors; and providing for an effective date,” Alaska House of Representatives. https://www.akleg.gov/basis/Bill/Detail/33?Root=HB 271
[2] Shoshana Weissmann, “Age Verifications Methods in Their Current Form Threaten Our First Amendment Right to Anonymity,” R Street Institute, June 1, 2023. https://www.rstreet.org/commentary/age-verification-methods-in-their-current-forms-threaten-our-first-amendment-right-to-anonymity/
[3] Reno v. ACLU, 521 U.S. 844 (1997), U.S. Supreme Court, June 26, 1997. https://supreme.justia.com/cases/federal/us/521/844/
[4]“Child online safety tools,” Competitive Enterprise Institute, https://cei.org/children-online-safety-tools/
[5] Ashcroft v. ACLU, 542 U.S. 656 (2004), U.S. Supreme Court, June 29, 2004. https://supreme.justia.com/cases/federal/us/542/656/
[6] Eric Goldman, “Two Separate Court Reiterate That Online Age Authentication Mandates Are Unconstitutional,” Technology & Marketing Law Blog, Sept. 19, 2023. https://blog.ericgoldman.org/archives/2023/09/two-separate-courts-reiterate-that-online-age-authentication-mandates-are-unconstitutional.htm
[7] 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.
[8] “Complaint for Declaratory and Injunctive Relief,” NetChoice v. Reyes, 2:23-cv-00911, Dec. 18, 2023. https://netchoice.org/wp-content/uploads/2023/12/NetChoice-v-Reyes_Official-Complaint_FINAL-Filed.pdf
[9] Shoshana Weissmann, “Age Verification Discourages Data Minimization Even When Legislators Don’t Intend To,” R Street Institute, May 24, 2023. https://www.rstreet.org/commentary/age-verification-legislation-discourages-data-minimization-even-when-legislators-dont-intend-that/.
[10] 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.
[11] For example, a quick step-by-step walkthrough for how to enable parental controls on any commonly-owned mobile device: “Parental Controls,” Internet Matters, https://www.internetmatters.org/parental-controls/