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A federal judge said Tuesday he plans to decide whether to block Arkansas’ new social media age verification law before its effective date, Sept. 1.
Act 689, passed in April, requires large social media companies to use a vendor for “reasonable age verification” before allowing access to their sites. Those under 18 may only access sites with parental permission.
Proof of age could include a digital copy of a driver’s license, government ID or other “commercially reasonable” method.
NetChoice — a nonprofit trade association for Internet companies like Meta, Twitter and TikTok — filed a lawsuit in June that contends the law infringes on Arkansans’ First Amendment rights, which the government cannot do without proving that the law is narrowly tailored to serve a compelling government interest.
The plaintiffs’ lawyer, Erin Murphy, argued in court Tuesday that the law is “not remotely narrowly tailored” and imposes arbitrary restrictions that exempt some companies from the law.
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.
Justin Brascher from the Arkansas Attorney General’s Office argued the law is narrowly tailored because without these exemptions the law would be “overly broad.” The legislation is aimed at protecting minors from harm online, and the state is specifically focused on the threat of sexual predators, Brascher said.
U.S. District Judge Timothy Brooks said he struggled understanding how the law was narrowly tailored because, if child predators are the area of concern for the state, it “seems like there are large holes in what the state is trying to do.”
The law’s exemption for online services or applications whose predominant functions are direct messaging would exempt Kik, a messaging app Brooks said he’s seen used in child exploitation cases.
Brooks asked: If the state’s concern is to protect minors from bad actors, “why carve out the places where they’re actually communicating with minors?”
Brascher said the state was trying to focus on sites where the largest number of incidents have occurred. The state submitted into evidence data from the National Center for Missing and Exploited Children, which reported its CyberTipline received more than 32 million reports of child sexual abuse material, child sex trafficking and online enticement in 2022.
Brascher said Facebook and Instagram, two companies affected by Act 689, had some of the most reports, but Brooks noted it would be better to contextualize this data to the size of the company. As two of the largest social media companies, they’re likely to have more reports.
If someone is under 18, Act 689 requires sites to 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.
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 permission.
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.
To better understand the age verification process, the state offered as an expert witness Tony Allen, chief executive of Age Check Verification Scheme. The United Kingdom-based company tests and certifies online and offline systems that check age and identity.
Allen said third-party verification typically involves the answer to a binary question such as whether or not the user is over the age of 18. The information is often transmitted as a digital token that translates to a yes or no, instead of transmitting personal data.
While there are ways to verify the age of a child and an adult online, Allen noted that accurately verifying the relationship between a minor guardian is “the real challenge.”
Murphy said many of NetChoice’s members already have parental controls to prevent harm to minors without restricting users’ access to constitutionally-protected speech or social media companies’ ability to disseminate that speech, as Act 689 would.
Brooks pointed out that many companies already prohibit kids younger than 13 years old from creating an account, so the new law would just affect children 13 to 18 years old.
Murphy noted that even if children have parental consent, Act 689 doesn’t address the state’s concern about minors interacting with predators once they’re on a social media platform. NetChoice members dedicate an enormous amount of resources to the issue and have more flexibility to remove predators and harmful content from their sites than the government, Murphy said.
Even though there are still ways for minors to encounter predators online with parental consent, Brascher said the state was trying to “strike a balance between government regulation and parental rights” with the new law.
When Brooks asked about simply using the service providers’ tools, Brascher said they haven’t worked. Until now, the state could only address the issue on the back end by prosecuting criminals. The new law allows Arkansas “to be proactive instead of reactive,” Brascher said.
First Amendment rights
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.
Fourth, NetChoice’s complaint also claims the law is too vague. For instance, the group asks whether audio services Spotify and Pandora qualify as social media companies based on their “primary purpose,” as defined by the act.
Fifth, 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.
Efforts to limit what ideas and speech minors are exposed to have been repeatedly struck down by the courts, the group said.
“S.B. 396 should meet the same fate,” NetChoice attorneys wrote in a motion. “The Act purports to protect minors from the harmful effects of ‘social media’ by requiring the companies that operate these services to verify that any person seeking to create an account is at least 18 years old or has parental consent to do so.
“By restricting minors — and adults (who now must prove their age)— from accessing these ubiquitous online services, Arkansas has ‘with one broad stroke’ burdened access to what for many are the principal sources for speaking, listening, learning about current events, and otherwise exploring the vast realms of human thought and knowledge.’”
Arkansas Attorney Tim Griffin opposed NetChoice’s motion for a preliminary injunction. He argued in a response that state and local governments in the U.S. have long barred minors from certain areas, like bars and casinos.
Social media is a modern example, and Act 689 is narrowly tailored, while allowing conditions for minors to be present.
The filing pointed to the negative trend in youth mental health and instances of child exploitation through social media.
“Like the cannibalistic witch welcoming Hansel and Gretel into her gingerbread house, social-media companies invite minors onto their addictive platforms, fattening their purses at the expense of minors’ health,” the state’s motion reads. “There can be no doubt: Arkansas has a compelling interest in protecting minors from the dangers of social media.”