Academic journal article Columbia Journal of Law and Social Problems

But It's Written in Pen: The Constitutionality of California's Internet Eraser Law

Academic journal article Columbia Journal of Law and Social Problems

But It's Written in Pen: The Constitutionality of California's Internet Eraser Law

Article excerpt

In September 2013, Governor Jerry Brown of California signed Senate Bill 568 (SB 568) into law. SB 568, dubbed California's "Internet Eraser Law," aims to protect California minors from certain online threats through two provisions. The first provision prohibits operators of websites from advertising certain products or services to minors. The second provision, the source of the law's "eraser" nickname, requires operators of websites to allow minors to remove content posted on the website unless the content is anonymized, was posted by a third party, or is required to be maintained by other provisions of law. This Note critiques both provisions of SB 568 on constitutional and policy grounds, concluding that California's Internet Eraser Law should survive any potential constitutional challenges. This Note begins, in Part II, by considering the free speech implications of the first provision of SB 568. Part III considers federal law's potential preemption of the statute, specifically under 47 U.S.C. § 230, and describes the policy flaws in the advertising provision of the law. Part IV explores the dormant commerce clause conflicts in the eraser provision of the law.

I. INTRODUCTION

In 2013, Americans grew increasingly wary about personal information stored online. Although many Americans focused their concerns about Internet privacy on intrusions by government agencies,1 Americans also cast a cautious eye toward private data collectors.2 With the federal government caught in a controversy regarding its own alleged violations of privacy, state governments, most notably California, aimed to protect consumer privacy in the private marketplace.3

California approached the problem of safeguarding Internet privacy in several different ways, but none drew more attention than SB 568.4 Signed into law on September 23, 2013, SB 568 protects California minors5 on the Internet in two ways: (1) it restricts the ability of website operators to market certain products and services to minors, and (2) it grants self-identified California minors who are registered users of a website the right to request the removal of personal content posted on that website.6 Both provisions of the law became operative on January 1, 2015.7

The first provision of SB 568 ("the Minor Clause") targets products and services that, in the view of the California legislature, may be harmful to minors.8 First, this provision prohibits operators of websites, online services, online applications, or mobile applications from "marketing or advertising specified products or services to a minor."9 The law prohibits "an operator from knowingly using, disclosing, compiling, or allowing a third party to use, disclose, or compile the personal information of a minor for the purpose of marketing or advertising specified types of products or services."10

The law encompasses numerous products and services. The advertising prohibition of SB 568* 11 includes: alcoholic beverages; firearms and handguns; ammunition; aerosol containers of paint, etching cream, and other materials potentially used for graffiti; tobacco products and electronic cigarettes; BB guns; fireworks; ultraviolet tanning devices; dietary supplements; lottery tickets; tattoos; and obscene material.12 Marketing or advertising is defined in the law as "makfing] a communication to one or more individuals, or [arranging] for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service" in "exchange for monetary compensation."13 The provision allows an exemption for marketing and advertising that is incidentally placed or embedded in online content if such placement is not distributed by the primary operator of the website.14

The second provision,15 the "Internet Eraser" provision, is vastly more complex. Under this provision, operators of Internet websites, online services or applications, and mobile applications that are either "directed to minors" or whose operators "[have] actual knowledge that a minor is using" the service must "permit a minor who is a registered user . …

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