Testimony in Opposition to South Carolina HB 4700 – Social Media Regulation
Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute
In OPPOSITION to HB 4700, “South Carolina Social Media Regulation”
March 20, 2024
Senate Labor and Employment Subcommittee
Chairman Bennett 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 for children and teens, mandating age verification for access to social media platforms raises both constitutional and practical concerns. Moreover, mandating parental consent for and access to minors’ social media accounts places the government in a role that should be reserved for parents alone.
HB 4700 starts by mandating that either social media platforms verify the age of their users or else apply a number of settings designed to protect minors’ privacy and security to all users by default. Practically speaking, in order to comply with the requirements of the rest of the bill, companies are likely to take the age verification route, likely a more invasive form than the self-verification that is most common among platforms today. The bill additionally requires that minors not be permitted to use social media platforms absent affirmative parental or guardian consent, which obviously necessitates verifying the identity of the consent-giver.
The most common ways of verifying age and parental status are either documentary identification, such as a government ID, or biometric identification via photo, video, or a facial scan. Naturally, many users may be hesitant to provide such 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.[1]
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.
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]
At minimum, the First Amendment concerns surrounding age verification and parental consent mandates found in HB 4700 guarantee a costly and lengthy legal challenge.
Importantly, age and identity verification also require social media to process a significant quantity of sensitive personal data that they might not otherwise, creating novel cybersecurity and privacy concerns. Even though HB 4700 does include a requirement that data acquired as part of the age verification or parental consent process be deleted after use, 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.[8]
The better approach to protecting children and teens from the very real dangers they may encounter online would be to focus on education – as Section 39-5-890 of this bill does, to its credit. Social media literacy education that highlights both the potential benefits and dangers of online communities is a healthy supplement to parental oversight over minors’ screen time.
For parents, the tools necessary to prevent minors from accessing unwanted sites and apps, and to limit and supervise their time spent online, are easily available at the device, browser and even network level.[9] 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] 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] 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] 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/.
[9] 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/