from the got-this-one-right dept
Stop me if you’ve heard this one before: a state legislature, caught up in the moral panic about social media, passes yet another clearly unconstitutional bill that will waste taxpayer money on doomed legal battles. This time it’s Colorado, whose legislature passed a ridiculously bad social media regulation bill (SB25-086) that looks suspiciously similar to bills that have already failed in Utah, Arkansas, and other states. But this story has a slightly different ending.
Like many such bills, this one had an age verification component, which would require massive privacy violations for all users, and also would have draconian and clearly unconstitutional requirements for websites to police certain specified “bad” content online, including suspending accounts of certain users based on Colorado claiming that some people don’t deserve social media accounts (which would clearly run afoul of the Supreme Court’s Packingham ruling from 2017).
In this case, though, Governor Jared Polis (who is often, though not always, good on internet issues) chose to veto the bill with a very clear letter explaining his (correct) reasons. He notes that while there are real concerns about problems online, much of the reasoning behind the bill feels like a moral panic, blaming the tech for how it is used:
SB25-086 is intended to address legitimate concerns regarding the safety of children online. My administration takes very seriously our obligation to promote and protect the public safety of everyone across our state, especially minors, both in physical spaces and online ones, and we share the concerns that prompted this bill. Just as when the telephone was invented by Alexander Graham Bell to connect people and ideas, it was later used for criminal activity and government surveillance, it’s also true that as social media platforms have become more popular, they too are used for illegal activity. Notably, e-mail, including group listservs, can and is also used for illicit activity and receives a full exemption from the legislation.
Despite good intentions, this bill fails to guarantee the safety of minors or adults, erodes privacy, freedom, and innovation, hurts vulnerable people, and potentially subjects all Coloradans to stifling and unwarranted scrutiny of our constitutionally protected speech.
Make no mistake, I share the concerns of parents and law enforcement across our state about minors and adults exposed to illegal activity on social media platforms as well as in neighborhoods. This is why my office offered suggestions focused on strengthening tools to help law enforcement successfully apprehend criminals. Sadly, the bill sponsors rejected these ideas and passed legislation that, to my mind, unduly infringes on the speech, privacy, and liberty rights of all users.
But it’s not just that the bill is based on a moral panic falsely targeted at the technology rather than specific abuses, it’s that the nature of the bill is deeply problematic and does away with some basic due process and privacy rights:
This law imposes sweeping requirements that social media platforms, rather than law enforcement, enforce state law. It mandates a private company to investigate and impose the government’s chosen penalty of permanently deplatforming a user even if the underlying complaint is malicious and unwarranted. In our judicial proceedings, people receive due process when they are suspected of breaking the law. This bill, however, conscripts social media platforms to be judge and jury when users may have broken the law or even a company’s own content rules. This proposed law would incentivize platforms, in order to reduce liability risk, to simply deplatform a user in order to comply with this proposed law.
Further, the costly and mandatory data and metadata collection requirements in this bill throw open the door for abuse by guaranteeing the availability of sensitive information such as user age, identities, and content viewed, and these reports could even be made public at the discretion of the Attorney General. This is not a speculative concern: people have been prosecuted for online searches related to reproductive health care access, and people have been detained and deported due to activity on social media platforms.
This kind of data collection threatens user privacy for those who may be searching for reproductive or gender affirming care in Colorado, as well as for our immigrant communities, especially without safeguards in the bill for how this data would be secured or shared. This creates additional legal jeopardy, as well as the potential for blocking Colorado users from accessing or participating in social media to avoid costly compliance with this law. Importantly, recent U.S. Supreme Court cases suggest that content moderation laws that result in the deplatforming of users will not withstand constitutional scrutiny. For a state that prides ourselves on being forward-looking and innovative, this is simply an unacceptable outcome.
He also notes that for all of the screaming about the supposed evils of the internet, the authors of the bill seem to ignore that many, many people are actually helped by the internet. And enabling government-backed censorship would create a huge mess:
Of course, many Coloradans rely on friends they’ve made through online social networks to help them get through hard times and as a personal support structure. But social media platforms do more than provide a platform for free expression and engagement. These platforms are also inextricable from the successes of small businesses and individuals who make a living online. Removing users as this bill demands will have devastating consequences on the livelihoods of many Coloradans that use social media platforms, with the largest economic impact being felt by content creators and small businesses that cannot afford website platforms or professional marketing campaigns. There have been instances across platforms of influencers, entrepreneurs, and even individual users being deplatformed for content related to breastfeeding, for example this measure would give that action the full force of government. Any sales pitch-be it for wellness products, gunsmithing classes, or mental health supports for marginalized youth would be subject to a private entity’s interpretation of its legality, with an incentive to err on the side of deplatforming, and the consequence could be permanent removal. Stripping users of cost-effective customer engagement and marketing opportunities is a potential consequence of this law.
He closes by also noting (as almost no other state does) the absolute ridiculousness of thinking that a single state should regulate the internet, which would create a 50-state statutory patchwork for businesses that operate without borders.
It’s a great letter.
Of course, almost immediately, the Colorado legislature sought to override his veto, and the Senate voted to override Polis 29-6 the very next day. The sponsors of the bill didn’t address any of Polis’ stated concerns (including the fact that the Supreme Court had made it clear that a bill like this was unconstitutional). Instead, they trot out the usual propaganda about how they’re just out there “protecting the children” and who could possibly be against that?
“I think it’s time that we dig deep and find the courage that is within all of us and the conviction that is within all of us to protect the children within the state of Colorado,” Sen. Lisa Frizell, a Castle Rock Republican and one of the bill’s main sponsors, said before the vote was taken.
[….]
“This bill gives us the tools to help remove predators and traffickers from using social media to harm our kids,” said Democratic Sen. Lindsey Daugherty of Arvada, one of the main sponsors. “This is not about censorship, it’s not about speech. It’s about standing up for the safety and dignity of our youngest and most vulnerable.”
So much unconstitutional, unconscionable garbage is passed by legislatures under the false banner of “protecting the children.” As Polis rightly noted, this bill won’t do that — it will actually make many children significantly less safe by driving them away from supportive online communities and forcing them to hand over sensitive personal data. But these moral panic-driven authoritarians don’t care about the real-world consequences. They just want their name in the headlines with false claims of how they saved kids they actually put at risk.
Thankfully, the override was halted earlier this week when the legislature realized it didn’t have the votes for the override in the larger House and punted on the bill.
The override effort failed when the state House laid over the vote to override the veto until May 9, which is after the legislative session ends. That prevented representatives from having to vote against the override after backing the bill.
“The votes are not here,” said Rep. Andy Boesenecker, a Fort Collins Democrat and one of the lead sponsors of the bill. “That’s a fact.”
These bad bills keep popping up over and over again, so I’m sure we haven’t seen the last of this kind of bill. What’s particularly concerning is watching supposedly informed players jump on the moral panic bandwagon. Take current Colorado Attorney General Phil Weiser, a leading candidate to replace Polis. As a former law professor specializing in internet and telecom law, Weiser should understand exactly why these bills are constitutionally problematic. Instead, he’s championing the same failed approaches we’ve seen crater in courtrooms across the country.
It’s a stark reminder that when it comes to internet regulation, even those with the expertise to know better often can’t resist the siren song of “protecting the children” — even when their proposed solutions do anything but.
Filed Under: 1st amendment, age verification, colorado, content moderation, due process, jared polis, moral panic, phil weiser, privacy, protect the children, social media
