The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
A federal court ruling in Arkansas has cast doubt on one of Ohio Gov. Mike DeWine’s policy priorities.
The governor urged lawmakers to require most minors to get parental consent before using social media. They agreed to include the proposal in the budget.
But this week, a judge in Arkansas halted a similar law from taking effect.
Ohio’s changes back in June, as lawmakers were preparing for final budget negotiations, Gov. DeWine pressed lawmakers to include social media consent language. The House had dropped the proposal from the budget, but the Senate put it back in.
The proposal requires social media platforms to get parental consent for any users younger than 16 before allowing them to use the service. It also carries provisions for verifying the parent or guardian’s identity and sharing content moderation features with them.
After getting parental consent, the company has to confirm that decision in writing or over the telephone. If a parent tells the company their consent was given “in error” or they change their mind, the company has 30 days to take down the profile.
“I think the most important thing is that we do something in this area,” DeWine said at the time, “And the key to me is really putting the ball in the court of the parents and giving the power to the parents.”
Lt. Gov. Jon Husted led the administration’s effort to craft the policy. He spoke even more forcefully about the potential danger of social media.
“We know that the algorithms that are in many of these social media apps are targeting children to addict them to these platforms,” he said. “That’s what they do — it’s designed to be addictive.”
Although the law defines social media broadly to include services with “public or semi-public profiles” where users “create or post content viewable by others,” it also has several carve-outs. It doesn’t apply to companies that predominantly provide search or cloud storage.
Similarly, online marketplaces can keep user reviews, and news sites can keep comment sections without triggering the law.
Companies that violate the law could face substantial fines. For the first 60 days of violations, courts can impose penalties of $1,000 dollars a day. That jumps to $5,000 a day after 60 days and $10,000 after 90 days.
But if the court finds the company is in “substantial compliance,” the law directs them to waive the fines if the company fixes the problem.
What happened in Arkansas? The law in Arkansas was set to take effect Sept. 1, but a judge granted a preliminary injunction while the challenge plays out. The tech industry trade group NetChoice argued key provisions of the law are too vague to implement and its broader effect would conflict with the First Amendment.
Laws in Ohio and Arkansas address the same issue, but their provisions are distinct. Most notably, Arkansas’ restrictions apply to all minors rather than just those younger than 16. Like Ohio, Arkansas attempts to define social media broadly and then carve out companies through exemptions.
In his decision, U.S. District Judge Timothy Brooks highlighted ambiguities in the legislation that could leave businesses unsure of whether they’re included or not. The law defines a social media company as one where the “primary purpose” is for users to create and share posts and interact socially with other users. But the law carves out services whose “predominant or exclusive function” is direct messaging.
“What about Snapchat?” Brooks asked in his decision. Although it’s routinely described as a social media company, the company’s emphasis on direct messaging might leave it in a gray area under Arkansas law. On the witness stand, the state’s expert witness asserted the law covers Snapchat.
“When the Court asked the same question to the State’s attorney later on in the hearing,” Brooks wrote, “he gave a contrary answer — which illustrates the ambiguous nature of key terms in Act 689.”
In arguments over which standard of review the court should use, Arkansas attorneys insisted the law regulates where a minor can be on the internet rather than the content minors can view. It’s akin to a location restriction — like not allowing minors a seat at a bar.
“If a social media platform is like a bar,” Brooks said, “Act 689 contemplates parents dropping their children off at the bar without ever having to pick them up again.”
Narrowly tailored? Brooks contended Arkansas lawmakers failed to tailor their legislation narrowly. By demanding social media platforms verify ages, it could chill speech for adults who don’t want to share private information like a picture of their license. By keeping minors out over potential harms, the law closes off access to an enormous amount of constitutionally protected speech — some of it harmful, some of it not.
The judge also argued the law doesn’t do a good job of addressing the harms lawmakers identified. He notes the state’s evidence identifies YouTube as the most widely used platform among children. It also cites gaming and video chat platforms as commonly used by sexual predators. Both are exempt.
He adds that the law also doesn’t apply to companies generating less than $100 million a year. “As a result,” he wrote, “platforms like Parler, Gab, and Truth Social will fall outside the scope.”
Arkansas attorneys cited an article from the National Center for Missing and Exploited Children as the basis for targeting platforms. The article included the number of suspected child sexual exploitation incidents the platforms reported in the past year. But Brooks argued the law doesn’t even reflect that report’s findings.
“Act 689 regulates Facebook and Instagram, the platforms with the two highest numbers of reports,” he wrote. “But, the Act exempts Google, WhatsApp, Omegle, and Snapchat — the sites with the third, fourth, fifth, and sixth-highest numbers of reports.”
What’s next in Ohio? NetChoice hasn’t filed suit against Ohio’s provisions, but the organization submitted opponent testimony objecting to the governor’s budget proposal on similar grounds. The brief argues Ohio’s social media restrictions would put the government’s idea of “good parenting” above actual parents’ decisions. It adds that age verification will require all users, regardless of age, to turn over sensitive information.
“The more information a website collects,” NetChoice warns, “the greater the risk of sensitive information getting into the wrong hands.”
Right now, Ohio’s social media parental consent law takes effect Jan. 15, 2024. Asked for comment about the ruling in Arkansas, a spokesman for Gov. DeWine said simply, “Our office is not familiar with the case.”
A spokeswoman for Lt. Gov. Husted said they believe Ohio’s law is distinct from the one in Arkansas, adding “social media is harming our children. We fully expect certain online companies subject to the Social Media Parental Consent Act to comply with the requirements under Ohio law, which goes into effect on January 15, 2024.”
