Arkansas Legislature passes social media age verification bill over privacy, speech concerns

Social media platforms, like Facebook and Twitter, must start verifying the ages of Arkansans creating accounts later this year.

The soon-to-be law, given final legislative approval on Thursday, seeks to protect children from the pitfalls of social media, but it has drawn concerns about data privacy and free speech rights.

New users under age 18 will need the express consent of a parent or guardian to create online profiles, under the law.

The sponsor of the legislation, Sen. Tyler Dees, R-Siloam Springs, told the Arkansas Senate Thursday morning that teens and children are being exposed to harmful people and inappropriate content on social media, arguing reasonable age verification would empower parents to protect their kids.

He urged senators not to “bow down to Big Tech.”

“They’re scared to death we’re going to hurt their profits,” Dees said.

Republican Sen. Ricky Hill of Cabot gave a passionate speech against what he called “a communistic China bill.” The new law would pick winners and losers, expose Arkansans’ sensitive personal information and hamper personal freedom.

“We’re wanting to put something into law that’s not going to change anything, except we’re going to have our identity stolen.”

“Let’s be parents,” Hill said.

The law is expected to soon be signed into law by Gov. Sarah Huckabee Sanders, who announced the proposal last month. Sanders has promised to take on “Big Tech,” which she says exploits children for profits.

Similar bills have been introduced around the country, and Utah recently passed the first-of-its-kind social media age verification measure. The Arkansas law at this point will be the first to be implemented when it takes effect Sept. 1 (The Utah law takes effect next year, though legal challenges have been promised).

The Arkansas requirement would only apply to Arkansans creating new accounts after Sept. 1.

How it works

Under this new law, social media companies must use a third-party vendor to perform reasonable age verification before allowing access to their platforms. This verification could include requiring a digital copy of a driver’s license, government ID or other “commercially reasonable” method.

Before allowing someone under 18 to become a new account holder, the sites must confirm that the minor has a parent’s permission.

Social media companies could be civilly and criminally liable if they knowingly fail to perform reasonable age verification.

Violation could also require companies to pay penalties to an individual, including a $2,500 fine for each infraction and damages resulting from a minor accessing social media without parental consent.

Social media companies and the third-party vendors must not retain any identifying information gathered during the age verification process once access to the platform has been granted.

The new regulation applies to the largest social media companies, like Meta, which owns Facebook and Instagram; TikTok; Twitter; Snapchat; and others.

It does not apply to platforms that generate less than $100,000,000 in gross annual revenue, and is written in a way that exempts some platforms, like YouTube, LinkedIn, online video games, email and messenger services, streaming sites and e-commerce.

Concerns

There is a clear consensus among supporters and opponents of the bill that social media can pose risks to younger users. The disagreement lies in how to balance mitigating those risks without violating users’ privacy and stepping on constitutional rights.

Larry Magid, the president and CEO of ConnectSafely, an independent nonprofit focused on online safety, privacy and security, echoed the sentiment expressed by Sen. Hill on the Senate floor.

This type of regulation is common in countries like China, but in the United States, “how do you balance this with our democratic principles and freedom?” Magid said. “It’s not easy, and there are tradeoffs.”

For one, Magid added, measures like the one in Arkansas send more personal data to social media companies. While the data eventually must be deleted under the law, worries remain.

“Assuming even the best of intentions, I’m concerned the data could get into the wrong hands before it’s deleted,” Magid said.

Senate President Pro Tempore Bart Hester, R-Cave Springs, spoke in support of the measure, saying age restrictions and providing ID are common in society.

“We already do that,” he said. “Minors can’t get on pornography sites. They can’t go to R-rated movies.”

Other critics have raised free speech concerns. In 2017, the U.S. Supreme Court unanimously ruled that social media is a public forum and protected under the First Amendment, striking down a North Carolina law that prohibited some felons from accessing social networking sites where children could be members.

“There’s nothing in the First Amendment that says you have to be 21 or 18 to enjoy freedom of speech,” Magid said.

Yaël Ossowski, deputy director of the consumer advocacy group Consumer Choice Center, called the bill “draconian.”

“This bill is paternalistic, sets a terrible precedent for online speech and access, and amounts to nothing more than heavy-handed government control of who is allowed online and when,” Ossowski said.

Hill, the Republican from Cabot, also noted a potential conflict with the U.S. Constitution’s Commerce Clause, which allows federal law to preempt state restrictions on interstate commerce.

Magid said it can be difficult for large corporations to navigate a patchwork of differing global and state-by-state rules.

Would social media companies like Facebook ever decide to leave a state rather than comply with new regulations?

“They don’t want to do that, but I do think it is a risk,” he said.

Children online

Linda Charmaraman, senior research scientist at the Wellesley Centers for Women and director of the Youth, Media & Wellbeing Research Lab, said that requiring age verification online brings privacy concerns but could also solve problems like catfishing and online extortion, which Dees says is happening to teens in Arkansas.

And Charmaraman said that requiring parental permission for social media access could be both helpful or a hindrance. For instance, it could allow parents to guide kids who are first learning to use social media.

“However, if parents are solely the ones entrusted to keep youth safe on social media, this measure might be misguided since parents often do not know what their kids are doing on social media,” she said. “It might create a false sense of safety and freedom from accountability from the social media platform standpoint.”

In a statement, Meta’s global head of safety, said the company wants teens to be safe online and had developed a number of safety tools, including automatically setting teen’s Instagram accounts to private and sending them notifications to take regular breaks.

“We don’t allow content that promotes suicide, self-harm or eating disorders, and of the content we remove or take action on, we identify over 99% of it before it’s reported to us. We’ll continue to work closely with experts, policymakers and parents on these important issues.”

Protecting children online requires a combination of things, including positive interactions among peers on the web and age-appropriate discussions between parents and their kids about social media, according to Charmaraman.

“The most effective methods are to have continued dialogue about the ups and downs of social media with trusted mentors, whether it’s your teachers, parents, aunts/uncles, cousins, coaches, counselors, siblings,” she said. “According to research on parental media monitoring, strict restrictions are usually a method used when things have already gone south.”

There are so many different types of social media networks, making blanket claims about their effects on minors difficult. However, Charmaraman noted that users predisposed to peer influence and approval who tend to compare themselves to others struggle to use social media in a healthy way. On the other hand, she said some kids find communities that give them a sense of belonging that they may not find in their physical communities, like LGBTQ children, those in rural areas without reliable transportation or some medical conditions.

She advised that children still care about what their parents think of them in the early adolescent years, so they may take guidance at that stage more seriously than as older teenagers when norms and behaviors are more firmly established.

“Parents should think of a ‘plan’ that works for their family and not just focus on a ‘ban’ — kids are savvy these days and will be able to find ways to circumvent restrictions,” she said.