EFF, Tech Industry: Calif. Social Media Ballot Initiative Violates Constitution

Consumer and industry advocates sounded alarms late last week over a proposed California ballot initiative that would make social media companies liable for up to $1 million in damages for each child their platform injures. Courts would likely find that Common Sense CEO James Steyer’s December proposal violates the First Amendment and Section 230 of the Communications Decency Act, said comments California DOJ forwarded to us Friday. For example, “Initiative 23-0035 is a misguided and unconstitutional proposal that will restrict all Californians’ access to online information,” the Electronic Frontier Foundation (EFF) said.

“The biggest social media platforms invent and deploy features they know injure large numbers of children, including contributing to child deaths,” said a Common Sense amended proposal the AG office received Friday. “The costs of these injuries are unfairly being paid by parents, schools, and taxpayers, not the platforms.” If voters approve the measure, a social media platform violating "its responsibility of ordinary care" would pay $5,000 to $1 million per child, or triple a child's actual damages. The proposed law would cover minors younger than 18 and apply to social media platforms that generate more than $100 million in annual gross revenue. It would allow the legislature to modify the law by majority vote only to "increase the amount of statutory damages or expand the liability of platforms."

Commenters responded to the proposal's original version, which used forms of the word “harm,” rather than “injury” in the amended version. Common Sense changed the wording to say "injury," reflecting "how harms are referred to under negligence law," a spokesperson said. Also, the earlier version said fines would apply to platforms that violate the prospective law “knowingly.” Under California’s process for qualifying ballot initiatives, the California secretary of state has until May 8 to determine if the initiative petition received enough signatures and to notify counties to verify a random sampling of signatures. The secretary would have until June 27 to determine that the measure qualifies for the Nov. 5 election.

Plaintiffs could collect up to $1 million "based on the vaguest of claims that the service violated 'its responsibility of ordinary care and skill to a child,” under Steyer’s proposal, EFF commented. "The heavy statutory damages imposed by Initiative 23-0035 will result in broad censorship via scores of lawsuits that may claim any given content online is harmful to any child." EFF noted that what is harmful to children is "incredibly subjective and depends on many factors," including the child's age. A website could possibly violate the proposed law in discussing an e-bike, since some children have suffered injuries riding them. "Because Initiative 23-0035 provides for so much variance in how people could enforce it, the liability will inevitably lead services to steer clear of even remotely controversial topics.”

The proposed law is also preempted by Section 230 of the federal Communications Decency Act, said EFF. That section "generally prohibits civil claims against online services when the legal theory is based on harm flowing from another user’s speech,” the consumer privacy group said. “To the extent that Initiative 23-0035 creates liability based on user-generated content that the plaintiff believes is harmful to minors, it would be barred by Section 230.”

The tech industry sued California over a previous social media law requiring an age-appropriate design code, NetChoice reminded the AG office in its comments. The 9th U.S. Circuit Court of Appeals temporarily blocked the state from enforcing the law through a preliminary injunction last year (see 2312140003). In addition, NetChoice added that it sued Arkansas, Utah and Ohio over age-verification requirements. Common Sense's "proposed initiative would be even worse because of its catastrophically vague terms,” it said. “The state attaching massive liability to the potential viewing of constitutionally protected speech would necessarily chill speech across the internet.”

"The initiative fails to do anything to protect children and instead threatens to harm them and every other citizen of California through its ham-handed and overtly unconstitutional requirements,” wrote Mike Masnick, Floor64 CEO and Techdirt publisher. It would violate First Amendment rights of adolescents and social media platforms alike, and precipitate "a flood of vexatious litigation,” Masnick commented. “It would greenlight lawyers to sue for any sort of perceived injury, even if the causal connection between the claimed injury and social media use is at best tangential. It also, at its core, would involve holding a third party liable for what another party might have directly done, which has generally been frowned upon by the courts.” California could be “stuck” with the law because it would bar the legislature from doing anything but ratcheting up penalties, he said

The proposal could lead to platforms restricting all users younger than 18, commented the Computer & Communications Industry Association (CCIA). "The proposal fails to provide clear definitions of key terms like ‘harmful content,’ leaving businesses vulnerable to inconsistent application and potential legal challenges,” said CCIA. Other poorly defined phrases include "the responsibility of ordinary care and skill to a child" and "maximum protection of the health, safety, and well-being of children,” said the industry group: "Private businesses will not be able to coherently or consistently make diagnostic assessments of all users. The lived experiences of children, teens, and adults differ immensely."

The proposed law’s “numerous constitutional defects will burden Californians with substantial expenses to defend against the legal challenges it will face,” said Chamber of Progress, another tech industry group. “The Initiative stands not as a guardian of youth welfare, but as a harbinger of legal turmoil and fiscal irresponsibility, poised to leave an indelible mark on the State’s once-booming technology sector.”

Requiring submission of sensitive information for age verification could have dire consequences for privacy, added the chamber. "States with restrictive laws, like Texas with its anti-abortion laws, could subpoena social media companies and their data vendors to target individuals ... who stand in support of reproductive rights,” it warned. “Foreign governments known for cyberespionage, such as China and Russia, could target these data troves to gather intelligence on U.S. citizens.” The California AG office additionally received more than three dozen short public comments opposing the ballot initiative.

“The initiative is a simple method of giving parents the right to bring claims in court for negligence by large tech companies,” Steyer responded in a statement emailed to us Monday. “It would be up to the courts to decide the merits of a parent’s claim. Tech companies have avoided any accountability for their profit-driven actions and it is time to change that, either through the legislature or through the ballot.”