My Comments To Attorney General Rob Bonta Regarding Common Sense Media’s Dangerous ‘Protect The Kids’ Ballot Initiative
Last week I noted that the improperly named Common Sense Media had submitted a very problematic and dangerous California ballot initiative that aims to hold social media companies liable should any harm that happens to any child be loosely connected to social media. As we noted, the research out there does not support the underlying conjecture the entire initiative is based on, and the initiative itself would clearly violate the 1st Amendment. Today is the deadline for submitting comments to California Attorney General Rob Bonta. Below are the comments I have just submitted.
Dear Attorney General Bonta,
As the founder and owner of a California small business engaging in online expression involving technology policy, I write to express my concern over proposed initiative 23-0035 titled Common Sense Initiative to Protect California Kids Online." Despite claims to the contrary, 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. It should not be permitted to come into force.
Among its defects:
It misdiagnoses an actual problem in order to invent another. Adolescent mental health is a serious issue deserving attention and support. But such is not what this initiative delivers. Instead of addressing the true causes of teen struggles, the initiative instead makes up its own, claiming that The biggest social media platforms invent and deploy features they know harm large numbers of children, including contributing to child deaths." However, it provides no evidence for that assertion, while numerous credible studies have shown the opposite to be true.
For instance the American Psychological Association's comprehensive survey of recent research1 ultimately concluded that [u]sing social media is not inherently beneficial or harmful to young people." A similarly thorough look into the teen mental health crisis" by the Journal of Pediatrics2 found in their review of the literature that there was little support for the contention that either total screen time or time involved with social media is a major cause of, or even correlate of, declining mental health." The study instead recommended that concerns for teen mental health be focused on more likely exacerbators, such as the lack of spaces for teenagers to engage in independent activity.
Even those studies more inclined to credit concerns about social media recognize that the evidence behind them is slim. For example, the U.S. Surgeon General's report on Social Media and Youth Mental Health"3 acknowledged the absence of evidence of either actual harm or causal connection. In fact it noted that what evidence does exist suggests that to the extent that social media use and mental health distress correlate, it is because those facing difficult situations seek out social media, and not because social media is causing those already existing stresses).
Indeed, the Surgeon General's report itself observed that that many teens, especially more marginalized teens, benefit tremendously from social media:
The buffering effects against stress that online social support from peers may provide can be especially important for youth who are often marginalized, including racial, ethnic, and sexual and gender minorities. For example, studies have shown that social media may support the mental health and well-being of lesbian, gay, bisexual, asexual, transgender, queer, intersex and other youths by enabling peer connection, identity development and management, and social support. Seven out of ten adolescent girls of color report encountering positive or identity-affirming content related to race across social media platforms. A majority of adolescents report that social media helps them feel more accepted (58%), like they have people who can support them through tough times (67%), like they have a place to show their creative side (71%), and more connected to what's going on in their friends' lives (80%).
In other words, rather than being the source of trouble for teens, social media is often a source of relief, which this initiative would close off.
Its proposed solution" to the misdiagnosed problem will only exacerbate it. By not understanding the true sources of strain on adolescent mental health,the initiative proposes a solution" that will only strain it further by taking away a critical resource teens depend on to alleviate their mental health challenges.
As one example, the Journal of Pediatrics article discussed above suggests that one of the biggest contributors to poor teen mental health is the lack of spaces for them to engage in independent activity. This initiative would only reduce those places by making social media off-limits to them thanks to its regulations that will inevitably lead to many social media sites simply banning those under 18 from accessing their sites. Even if such an outcome is not what the initiative explicitly seeks to achieve, it will still be the inevitable result of raising the risk for social media platforms that allow younger teens to continue to use them.
The proposed initiative will strongly incentivize platforms to look the other way, rather than solve actual issues. The practical effect of this initiative is that social media companies will be less legally able to provide platforms that are as effective at limiting any actual harms. Because all the knowingly" requirement accomplishes is legally encouraging, if not outright requiring, social media companies to put their head in the sand rather than make their platforms better.
Presently, most major social media platforms regularly conduct internal research, much of which is designed to help identify any risks and dangers to their users, including younger users. If the state is going to care about eliminating those dangers then it should want the companies to engage in the exercise of looking for them. But this law prevents them from looking by imposing liability if they find any. It discourages them from even trying to know what happens on their platforms as a first step to making them better, because they will be legally safer if they do not know. No one is helped by the mandated ignorance this initiative encourages; it produces a completely counterproductive result.
What the initiative attempts to do is unconstitutional. This initiative deliberately aims to control how adolescents can use social media. Such an effort is unconstitutional on at least two fronts.
First, it violates the adolescents' own First Amendment rights. As the Supreme Court found in Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 794-95 (2011) (internal citations omitted):
[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed."
It would also violate the rights of the social media platforms themselves. The proposed initiative puts liability on companies only for knowingly" violating their responsibility of ordinary care and skill to a child." But it puts this condition on how a company enables the exchange of expression, which is inherently a First Amendment-protected act, and ultimately inhibits it. As a federal district court recently stated in regards to a different law targeting similar issues, the California Age Appropriate Design Code4:
Putting aside for the moment the issue of whether the government may shield children from such content-and the Court does not question that the content is in fact harmful-the Court here focuses on the logical conclusion that data and privacy protections intended to shield children from harmful content, if applied to adults, will also shield adults from that same content. That is, if a business chooses not to estimate age but instead to apply broad privacy and data protections to all consumers, it appears that the inevitable effect will be to impermissibly reduce the adult population ... to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 381, 383 (1957). And because such an effect would likely be, at the very least, a substantially excessive" means of achieving greater data and privacy protections for children, see Hunt, 638 F.3d at 717 (citation omitted), NetChoice is likely to succeed in showing that the provision's clause applying the same process to all users fails commercial speech scrutiny.
Beyond misdiagnosing the real problem, and making any real problems worse, the initiative will result in a flood of frivolous litigation in the courts. Passing the initiative would almost certainly lead to a flood of vexatious litigation. 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.
Yet by establishing a standard in which families may seek $1 million per child harmed"5 it is likely that many families, perhaps encouraged by lawyers, will file lawsuits hoping to cash in on the initiative's promised payday. After all, there is no dispute that adolescence can be a difficult period in a person's life. Teens may indeed suffer eating disorders, depression, bullying, and more. But it is not at all clear that they suffer them because of social media, especially not when they were suffering them before there was anything we might today call social media. But with this initiative plaintiffs would only need to point to the existence of a problem and the existence of social media in order to get a shot at one million dollars. Even if the most frivolous cases get dismissed, it will still impose an enormous burden on the social media platforms and the courts to throw open the courthouse doors far more widely than our law has allowed in the past, and based on a correlation so unsupported by the evidence.
The initiative itself is guilty of inflicting the same harm it purports to prevent. The initiative suggests that a social media company's lack of responsibility of ordinary care and skill to a child" can lead to it being held responsible for any harms that child experiences. Yet this initiative, as shown here, is itself an experiment on children with a high high likelihood of harm (as detailed above) and has demonstrated its own lack of care in addressing it, as this initiative pushes forward without there being evidence to support its fundamental arguments. It wants to address teenagers' social media experiences, and it will. But it will only make them worse, and without any recourse, concern or responsibility for such harms.
And it would entrench these defects, with no opportunity for the Legislature to ameliorate them. The initiative contains a one-way ratchet. While the Legislature can make modifications, it may amend it only to either increase the amount of statutory damages or expand the liability of platforms." (Emphasis added.) Even in the face of accruing evidence that its penalties and requirements need to be rolled back, the Legislature will be powerless to do so, no matter how much harm the initiative causes. Thus not only is the initiative a bad idea on its face, it is one that we will all be stuck with.
For all these reasons and more, proposed ballot initiative 23-0035 titled Common Sense Initiative to Protect California Kids Online" would not serve the people of the state of California.
Sincerely,
Mike Masnick
Floor64, Inc. (publisher of Techdirt.com)
- APA Health advisory on social media use in adolescence" https://www.apa.org/topics/social-media-internet/health-advisory-adolescent-social-media-use
- Journal of Pediatrics: Decline in Independent Activity as a Cause of Decline in Children's Mental Well-being: Summary of the Evidence" https://doi.org/10.1016/j.jpeds.2023.02.004
- Surgeon General Vivek Murthy, Social Media and Youth Mental Health," https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-advisory.pdf
- NetChoice v. Bonta, Order Granting Motion for Preliminary Injunction
- Another sign of the lack of care taken in drafting the initiative, aside from addressing its collateral effects, is that the proposed initiative states that the presumed damages are to be one thousand dollars ($5,000) per violation up to a maximum, per child, of one million dollars ($1,000,000.)." Notably, one thousand dollars" would be written as ($1,000) not ($5,000). While typos can be forgiven, what cannot be is the lack of attention to the potentially distorting effect such terms will have, and in any case it is unclear which amount is the typo.