Facebook and Twitter already offer erasing options to their users, but now all social networking sites will have to do the same for children who live in California. The new law has ignited a debate about whether states can or should regulate the borderless Internet.
Two Congressmen, Reps. Ed Markey of Massachusetts and Joe Barton of Texas, tried to pass a similar federal law called the “Do Not Track Children Act of 2011,” but it died in committee. Markey, now a senator, plans to introduce the bill again this year.
The measure received support from a number of organizations, including the nonprofit Common Sense Media, whose CEO Jim Steyer pointed out that while teens are avid users of social networking sites, they “often self-reveal before they self-reflect and may post sensitive personal information about themselves -- and about others -- without realizing the consequences.” Steyer also cited a poll by Pew Research that found 59 percent of teens have deleted or edited something that they posted in the past and 19 percent have posted updates, comments, photos or videos they later regretted sharing.
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But the California law has already raised questions and ignited a debate about the role of state law in the realm of the borderless Internet. Eric Goldman, who writes about Internet law for Forbes.com, sees three big problems with the law.First, he argues that it creates the illusion of control. A minor may think he or she has erased a posting, but if it’s been copied or reposted somewhere else, the content lives on and remains discoverable.
Second, the law could trigger what Goldman calls “collateral damage.” When a teen removes a piece of discussion from a comment thread, the thread risks becoming nonsensical and social network sites might elect to eliminate the entire thread -- taking down the content of everyone, not just the teen who wants to erase his or her comments. Other critics have expressed that collateral damage may occur because websites will have to expand the amount of information they collect on individuals to include age and location.
Third and possibly the biggest concern is whether states have the right to and how they go about regulating the Internet, which operates without borders (except in the states where online retailers have to collect sales taxes -- but that’s another controversy in itself). Goldman argues that states lack the authority to regulate the Internet, and points out the confusion surrounding the law: “Do all websites/apps around the country have to comply with California’s law on the chance that some users may come from California? That would violate the Dormant Commerce Clause, a Constitutional doctrine that says only Congress can regulate interstate commerce. Or does this law only apply to websites/apps with physical operations in California? The law doesn’t clarify its jurisdictional nexus, leaving that question open for future fights and a potential Constitutional challenge.”
Should other states pass similar laws, any entity with a website could be scrambling to figure out how to apply dozens of policies for each state, which could prove extremely unwieldy and cumbersome for both large and small web companies. A national law would render some of these issues moot. But given the struggles to pass a federal online sales tax bill, the idea of imposing even more regulation on the Internet may prove hard to digest. For now, though, the California law takes effect until Jan. 1, 2015, giving companies in the state time to prepare.
