Recently, I penned an article for the February 2023 edition of XBIZ World magazine, analyzing the impact of Louisiana’s age verification law, HB 142. Fast-forward just a few months and now the Utah legislature has passed an amended version of Senate Bill 152, the Utah Social Media Regulation Act, which would require social media companies to verify the age of users and obtain parental consent to create accounts for minors.
SB 152 is sponsored by Utah State Senator Mike McKell, who just happens to be the brother-in-law of Utah Governor Spencer Cox, who has called for “strong action” against tech companies. At the time of this writing, the bill was on its way to Governor Cox’s desk, and he has confirmed that he intends to sign it into law.
While it is impossible to ever predict the outcome of litigation, and while constitutional challenges are historically complex and time-consuming, in my opinion SB 152 is unconstitutional and, at minimum, violates the First Amendment.
The goal of this article is to provide answers to some of the most frequently asked questions surrounding this legislation. This article is not meant to be a substitute for speaking with an attorney who can analyze the law and its applicability to your specific platform.
When does Utah’s Social Media Regulation Act become effective?
The Act gives social media companies until March 1, 2024, to become compliant with its various components.
What constitutes a “social media company” and a “social media platform” according to the legislation?
A “social media company” is a person or entity that: (a) provides a social media platform that has at least 5 million account holders worldwide, and (b) is an interactive computer service. A “social media platform” means an online forum that a social media company makes available for an account holder to: (i) create a profile, (ii) upload posts, (iii) view the posts of other account holders, and (iv) interact with other account holders or users. Examples of companies that seemingly meet this definition are: Meta (Facebook and Instagram), Twitter, Reddit, Snapchat, Alphabet (YouTube) and TikTok.
What does Utah’s Social Media Regulation Act require from a social media company?
The broad strokes are that Utah’s Social Media Regulation Act:
- Requires a social media company to verify the age of a Utah resident seeking to maintain or open a social media account.
- Requires a social media company to obtain the consent of a parent or guardian before a Utah resident under the age of 18 may maintain or open an account.
- Prohibits a social media company from permitting a Utah resident to open an account if that person does not meet age requirements under state or federal law.
- Requires that, for accounts held by a Utah minor, various safeguards be implemented including, but not limited to, the prohibition of direct messaging, limitation of hours of access, and that a social media company must provide a parent or guardian access to content and interactions of an account held by a Utah resident under the age of 18.
Does the Utah Social Media Regulation Act apply to adult platforms?
Without a doubt, Utah’s Social Media Regulation Act applies to all adult platforms that meet the definition of a social media company or a social media platform.
Who can enforce the Utah Social Media Regulation Act and what are the associated penalties?
SB 152 provides multiple mechanisms to hold a social media company liable for violating its overbroad requirements. First, the Utah Division of Consumer Protection is empowered to receive and investigate consumer complaints related to violations of SB 152. Following its investigation, the Division is given the authority to impose an administrative fine of up to $2,500 for each violation, seek injunctive relief, seek disgorgement of any money received by a social media company and seek actual damages to an injured purchaser or consumer.
It is noteworthy that there appears to be a 30-day “notice and cure” provision, which requires the Division to notify a social media company of potential violations of SB 152 so that the company may rectify those violations. However, this opportunity to “cure” appears filled with specific technical requirements that if not followed, can result in the Division seeking sanctions against the social media company.
Second, SB 152 creates a private cause of action for violations. That means any person alleging that a social media company has violated SB 152 will be able to file a lawsuit against that social media company, seeking reasonable attorney fees and court costs, plus either $2,500 per incident or violation or actual damages for financial, physical and emotional harm incurred by the person bringing the action if the court determines that the harm is a direct consequence of the violation or violations — whichever is greater.
So, although SB 152 is not a criminal law, it gives authority to the Utah Division of Consumer Protection to act as an investigative force and levy administrative penalties. Of course, the Division is given the ability to turn to the Utah courts for assistance in enforcing its new powers. On top of that, any person can pursue private causes of action.
Is SB 152 constitutional?
While it is impossible to ever predict the outcome of litigation, and while constitutional challenges are historically complex and time-consuming, in my opinion SB 152 is unconstitutional and, at minimum, violates the First Amendment. Moreover, unlike Louisiana’s HB 142, which was drafted in a manner that prohibits an immediate constitutional challenge — barring someone attempting to enforce it — SB 152 can arguably be challenged now, and I am hopeful that at least one, if not more, social media companies will file suit in federal court to stop this atrocity in its tracks.
What should I be doing right now as a platform operator?
As I stated at the beginning of this article, all platform operators should be consulting with an attorney to analyze SB 152 and its applicability to their specific platform. The first and most important step will be to determine whether a platform meets the definition of a “social media platform” under this new law. Assuming this law doesn’t get eaten alive in federal court, platforms have a little time, since enforcement would not begin until March 1, 2024.
Given Utah lawmakers’ history of disrespect for the First Amendment, SB 152 is no surprise. There are certainly conversations and debates to be had, and practical steps that can be taken, when it comes to protecting minors from inappropriate content and interactions through online social media — but that doesn’t mean it’s the place of government officials to impose their beliefs by force upon their constituents. In fact, preventing that is the specific purpose of the First Amendment, which is why the U.S. government cannot subject its citizens to rules and laws that prohibit them speaking their minds, other than in exceptional cases. While it’s true that there was no internet or social media when the chief author of the Bill of Rights, James Madison, was around, nevertheless these Utah lawmakers should spend a little time catching up on his writings and teachings.
Corey D. Silverstein is the managing and founding member of Silverstein Legal. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions including Michigan, Arizona, the District of Columbia, Georgia and New York. Contact him at MyAdultAttorney.com, corey@myadultattorney.com and 248-290-0655.
