Opinion: Utah has led the nation in standing up for kids with Big Tech and social media. Don’t back down now

Editor’s note: The following letter was sent to members of the Utah State Senate and House on Wednesday, from representatives of The Institute for Family Studies, The Center for Renewing America, The Ethics and Public Policy Center and Heritage Action for America.

Dear Members of the Utah Legislature,

We the undersigned write to express our deep concern with efforts in the Utah Legislature to repeal and replace important provisions of the state’s groundbreaking Social Media Regulation Act (2023). The two bills in question, SB194 and HB464, would roll back powerful protections for kids’ online safety and fail to significantly immunize the law against legal challenges.

In passing the Social Media Regulation Act, Utah led the nation in protecting children from the scientifically documented harms of social media. At the heart of the act are three interlocking requirements for social media companies: 1) verify the age of new and existing user accounts; 2) obtain the consent of a parent or legal guardian if a user is a minor; and 3) ensure that parents are able to view posts and messages to and from any minor user in their care.

From a policy standpoint, SB194 and HB464 trade robust child safety protections for far weaker measures, and they diminish the authority that the Social Media Regulation ActA sought to restore to parents.

First, the bills weaken the parental consent requirement. While the original social media law requires verifiable parental consent for a minor to hold a social media account, SB194 would only require parental consent to change certain privacy settings. Whereas the SMRA granted parents the power to determine whether their kids open a social media account, SB194 gives the final say to the kids (who often access social media against their parents’ wishes, as studies have shown). Similarly, HB464 would give Big Tech companies a rebuttable presumption in court i.e., a legally established presumption of innocence, if they choose to obtain parental consent on a voluntary basis.

Second, the bills also gut important parental controls. The original law requires platforms to let parents view their child’s posts and messages. But the proposed changes rollback those specific requirements and specify that parental controls could only be activated with the minor’s permission. Under SB194, when a child chooses to change the default privacy settings, only then would she be required to receive parental permission.

Third, while the original law directly prohibits platforms from using features and practices that contribute to kids’ social media addiction, the new bills remove that ban. In its place, platforms would only be required to disable autoplay and infinite scroll functions for minor accounts. This appears to leave platforms free to make use of numerous other known tricks — algorithmic recommendation and sequencing, visual filters, disruptive in-service alerts and notifications and public displays of engagement metrics — intended to keep kids hooked on their services.

Finally, in the latest bill text, SB194 gives state sanction to methods of age verification that many Utah citizens will find undesirable. In other states that have enacted similar legislation for social media or pornography, permissible methods of age verification have been restricted to commercially common and privacy-preserving means of identifying one’s own person via legally secure documentation. SB194, by contrast, only requires “documentary evidence,” i.e., a driver’s license or other official documentation, for appeals of age determination, and, instead, calls for age determination to be initially conducted by an “age assurance system.” This might seem anodyne (and even desirable) to the average lawmaker, but, by industry standard, “age assurance” is an umbrella term that includes classic documentary measures of age determination, as well as methods that deploy artificial intelligence to conduct analyses of users to infer their age by tracking their online behavior or by scanning the body’s so-called “biometric markers,” such as retinal scans, facial scans and thumb prints. This is underscored by the only specification for “age assurance” in the statute, that the operation be 95% accurate, i.e., p<.05, which is the common threshold in the age verification industry to make biometric analyses and behavioral tracking permissible. Lawmakers should clarify whether this is their intent or not. But if it is, then the ultimate effects of the replacement bills would be the diminished stature of parents, as well as the fuller reign of Big Tech over the lives of Utah’s kids. It’s a big price to pay for such modest gains.

Proponents of these changes argue that they are necessary to avoid resource-intensive litigation against a powerful and well-funded tech industry. They contend that unlike the original law, the new bills will fare far better in the courts. This is both wishful thinking and likely false.

Legislators must realize that when it comes to protecting kids from social media, states have no legal risk-free options — except to do nothing. The Supreme Court’s decisions in Reno v. ACLU, Ashcroft v. ACLU, and Brown v. Entertainment Merchants Association, as well as its compelled speech doctrines, render any legislation, including the proposed SB194 and HB464, subject to constitutional challenge. Social media age verification laws present novel questions that courts have yet to fully address. For that reason, attempts to forecast what elements of social media age verification laws will survive judicial review are highly speculative.

Moreover, existing precedents are weak — and states must have the courage to challenge them directly (which the Social Media Regulation Act did). In Ashcroft, the court held that an age verification requirement for free pornography sites was unconstitutional because filters were a less restrictive alternative. This factual finding—along with many other factual findings no longer true in the age of the smartphone — render the precedent worth revisiting. Even more so because new evidence has emerged that shows the fundamental harm of social media (and pornography) to kids.

The legal theory that underpins the Social Media Regulation Act is that it is not covered by Ashcroft, because the law makes age verification a prerequisite for requiring parental consent for minors to enter into contracts with social media platforms. This is not a restriction on speech (though Big Tech lobbyists have been arguing otherwise). The Social Media Regulation Act regulates minors’ right to contract for certain goods and services. State power to regulate the contract rights of minors — in areas ranging from medical services, liability waivers, or even tattoos — is constitutionally uncontroversial. This is the argument that Utah’s attorney general should be preparing to take all the way to the Supreme Court. But, unfortunately, the state is trading the opportunity to defend meaningful protections for kids for an almost certain defeat.

Utah is retreating at the very moment of Big Tech’s vulnerability. As our recounting of the precedents above clarify, the factual predicates of the relevant rulings have proven to be unfit for application to the moment. At the same time, on the federal level, it is clear that social media platforms are anticipating regulation. Several bills are simultaneously gaining steam. Chief among them, the Kids Online Safety Act currently enjoys 62 sponsors in the U.S. Senate, and Big Tech companies are lobbying to guide federal laws away from themselves and toward competitors. In other words, it is time for states like Utah to press forward.

Though the Social Media Regulation Act is not perfect — we have suggestions for making it even stronger that respect its fundamental structure — it does have teeth. Rather than replacing the Social Media Regulation Act, legislation should build on that law’s groundbreaking protections for children and parents.

We respectfully urge you not to undermine Utah’s leadership in protecting kids online. The children of Utah are worth the struggle and the state is up to the challenge.

Thank you for your time and consideration.

Michael Toscano, The Institute for Family Studies

Adam Candeub, The Center for Renewing America

Clare Morell, The Ethics and Public Policy Center

Heritage Action for America