Internet group files federal suit against Arkansas over new social media age verification law

A tech trade group sued Arkansas in federal court on Thursday, challenging a new state law that requires social media platforms, like Facebook and Twitter, to verify new users’ ages.

NetChoice — an association whose members include Meta, Twitter and TikTok — argue in the lawsuit that Act 689 of 2023 violates the First Amendment rights of Arkansans.

The law, heralded by Gov. Sarah Huckabee Sanders, seeks to protect children from the harms of social media by requiring new users to prove that they are 18 or older or obtain parental permission to be on a site.

It immediately drew concerns from data privacy and free speech advocates. 

NetChoice has asked a judge in the U.S. District Court for the Western District of Arkansas to enter a preliminary injunction to prevent the law from taking effect Sept. 1.

“Arkansas Senate Bill 396 is the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors,” the lawsuit reads. “Books, movies, television, rock music, video games, and the Internet have all been accused in the past of exposing youth to content that has deleterious effects. 

“But the U.S. Supreme Court has repeatedly held that, while the government undoubtedly possesses ‘legitimate power to protect children from harm,’ ‘that does not include a free-floating power to restrict the ideas to which children may be exposed.’”

In a statement, Sanders reiterated her promise to hold “Big Tech” accountable.

“For years, social media companies have gotten away with exploiting kids, and it’s proven to have a negative impact on their mental health,” the Republican governor said. “I promised to hold Big Tech accountable to protect kids and empower parents. I am confident in the Attorney General’s ability to vigorously defend this law.”

Arkansas Attorney General Tim Griffin, who is the named defendant in the suit, said, “I look forward to vigorously defending Act 689.”

The lawsuit is the second to challenge a law that imposes restrictions on social media companies in hopes of protecting minors from harmful content. (The first challenges a California law that requires social media platforms to strengthen protections for children, though it goes about it in a different way compared to Act 689.)

There is a growing consensus in the U.S. and across the world that social media platforms present a number of risks that can be harmful to minors. The disagreement — which does not coincide with typical partisan lines — lies in how the problem should be addressed. 

On the one hand, states like Arkansas, Utah and California have opted to increase government regulation on social media companies. Arkansas and several other states have also voted to impose similar restrictions on pornography sites, and several ongoing lawsuits are challenging those new laws.

On the other hand, some would prefer to leave the burden to protect children with their parents and allow social media companies to take measures to protect young users, such as limiting messages from strangers, encouraging users to take frequent breaks and additional parental controls.

The law

Under Act 689, social media companies must use a third-party vendor to perform “reasonable age verification” before allowing access to their platforms. That could include requiring a digital copy of a driver’s license, government ID or other “commercially reasonable” method.

If someone is under 18, the sites must confirm that the minor has a parent’s permission, and online companies could be civilly and criminally liable if they knowingly fail to perform reasonable age verification.

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

Violation could also require platforms 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 keep 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 million 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.

The argument

NetChoice argues that Act 689 violates the First Amendment to the U.S. Constitution in a multitude of ways without identifying a “compelling governmental interest” for doing so.

First, the law violates adults’ free-speech rights by requiring them to provide private data before accessing social media. 

Second, it violates the rights of minors by preventing them from accessing sites for “many legitimate and productive purposes that lie at the core of what the First Amendment protects.”

Third, it discriminates against the largest social media platforms because it doesn’t impose the restrictions on similar sites — like Twitch, Mastadon, Discord, BeReel, Truth Social and others, based on those sites’ size and content types. 

NetChoice’s complaint also claims the law is too vague. For instance, the group asks whether Spotify and Pandora qualify as social media companies based on their “primary purpose,” as defined by the act. 

“While many people use those services primarily to listen to music, others use them primarily to share music with others,” the suit reads.

The suit also argues that the new Arkansas law is preempted by the federal Children’s Online Privacy Protection Act, which regulates online services’ collection and use of personal information from children.

Lastly, NetChoice’s litigation claims that Act 689 violates the Commerce Clause and interstate commerce principles by imposing restrictions on activities that take place outside of Arkansas.

“We’re suing Arkansas today to protect First Amendment rights and keep online speech accessible,” said NetChoice Litigation Center Director Chris Marchese. “This law empowers the state to tell Arkansans what types of information they’re allowed to access online, forces them to hand over their most sensitive documents to use the internet, and seizes decision making from parents and families. That is an unconstitutional power grab, and we’re petitioning to put a stop to it.”