Testimony in Opposition to Minnesota HF 4400 – The Prohibiting Social Media Manipulation Act

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

In OPPOSITION to HF 4400, “The Prohibiting Social Media Manipulation Act”

March 14, 2024

House Judiciary, Finance, and Civil Law Committee

Chair Becker-Finn, Vice Chair Frazier, Republican Lead Scott 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 we acknowledge and share some of the concerns about the effects of social media usage that the bill purports to address, the approach taken by HF 4400 would be nearly impossible for companies to implement or comply with and is also likely to be found in violation of the First Amendment. A better approach to addressing these concerns, especially the impact of social media on younger users, is through education of both adults and youth.^[1]  

HF 4400 approaches consumer protection by dictating how social media platforms ought to structure their services and how they allow their users to interact with content and one another by default.^[2] For example, the bill’s section on content optimization would seem to ban platforms from offering any content that a user themselves has not expressly sought, effectively disabling most sites’ recommendation algorithms.

Such a requirement not only burdens users’ access to content but burdens the platform’s own speech, as courts have repeatedly designated how companies choose to filter and present the content they host to be protected speech. In one recent example, the U.S. 11th Circuit Court of Appeals upheld a preliminary injunction against a Florida social media law in part because “it forces platforms, upon a user’s request, not to exercise the editorial discretion that they otherwise would in curating content—prioritizing some posts and deprioritizing others—in the user’s feed.”^[3] HF 4400 is arguably worse because users actually have to request to opt out of the content restrictions rather than the opposite.  

Moreover, the bill leaves platforms with extremely unclear guidance on how they are supposed to comply with its “content optimization,” such as requiring them to let users promote content that is “high quality” and deprioritize content that is “low quality.” In the case of content recommendation algorithms, “high quality” is required to be determined by “a varied set of account holders,” which is left up for the platform to define under the transparency reporting mandated later in the bill. The breadth and vagueness of these definitions pair particularly poorly with the bill’s private right of civil action, which will doubtless invite a torrent of expensive litigation claiming inadequate compliance with the subjective terms of the new law.

Among HF 4400’s most unusual features is its mandate that device operating systems (OS) come equipped with the option for a user to disable a list of features by default “across all social media platforms managed by the operating system on the user’s device.” The features to be disabled include infinite scroll, autoplay, push notifications, or any other features that are deemed to “increase, sustain, or extend a user’s engagement with the platform beyond the user’s expressed preferences.”

It is technically infeasible to expect device manufacturers to be able to comply with this mandate across every covered platform required by the bill at the operating system level. Moreover, this would effectively be a nationwide mandate, as it would be an impossible feature for OS developers to implement on a state-by-state level. Even if it were not technologically unworkable, requiring that social media platforms be rendered inconvenient to navigate by default may well run afoul of the First Amendment as well, as courts have repeatedly deemed the algorithms and features by which content is curated and presented to be protected expression.^[4]

For all of these reasons, we strongly urge you to oppose HF 4400. Please do not hesitate to contact us for any further questions or discussion on this matter.

Thank you for your time,

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

[1] Jennifer Huddleston, “Improving Youth Online Safety Without Sacrificing Privacy and Speech,” Cato Institute, June 20, 2023. https://www.cato.org/briefing-paper/improving-youth-online-safety-without-sacrificing-privacy-speech#improving-digital-literacy-curriculum 

[2] HF 4400, “The Prohibiting Social Media Manipulation Act,” Minnesota House of Representatives, 2024. https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF4400&ssn=0&y=2024.

[3] NetChoice v. Moody, USCA11 21-12355 (2023),  https://media.ca11.uscourts.gov/opinions/pub/files/202112355.pdf.

[4] Jess Miers, “California’s SB 680: Social Media ‘Addiction’ Bill Heading for a First Amendment Collision,” TechDirt, Aug. 16, 2023. https://www.techdirt.com/2023/08/16/californias-sb-680-social-media-addiction-bill-heading-for-a-first-amendment-collision/