A California law will now permit minors to remove potentially embarrassing content they post on the Internet.
On Monday, California Gov. Jerry Brown (D) signed a piece of legislation into law that would grant children under the age of 18 the legal right to have content they posted on the Internet, including tweets, photos and Facebook posts, removed if they so desired.
Starting Jan. 1, 2015, all Internet website operators, online services, online application and mobile applications will be required to remove specific posts and photos at a minor’s request, especially if the material has the potential to harm their reputation. The key word is “remove,” since website owners do not have to delete any of the content, they just have to make it inaccessible to other users of the website.
The legislation, which was proposed by Sen. Darrell Steinberg (D) and is known as the “eraser button” or right-to-delete provision, was unanimously passed by the state senate and has been hailed as an extension of a minor’s privacy rights in a world where people share more about their lives than ever before.
It differs from the recently revised federal Children’s Online Privacy Protection Act in that it is the first legislation of its kind in the U.S. that actually grants a minor the legal right to remove content they posted on the internet.
Talking to a local CBS affiliate in San Francisco, Steinberg said that the bill is supposed to protect “a teenager that says something on the Internet that they regret five minutes later.” He added that “under this bill, the websites in California will have to have the ability for the young teenager to remove that.”
Though the bill does nothing for those over the age of 18, it has received a lot of support from adults who argue that just like juvenile criminal records can be expunged or sealed, that same courtesy should be extended to “job-seekers trying to rid Google of that embarrassing photo they sent to their boyfriend in high school.”
James Steyer, chief executive of Common Sense Media, a San Francisco-based advocacy group that pushed for the legislation’s passage, called the bill “a very important milestone,” and said that “kids and teenagers often self-reveal before they self-reflect.”
He called the legislation “an important first step” but said “there’s more to be done.”
One of the examples given is the case of Justin Carter, a Texas teenager who wrote on Facebook last February that he was going to fire a weapon at school. His family maintains the post was sarcastic and was posted while Carter was playing a videogame, but due to the severity of the threats in the post, Carter was put behind bars for six months on a felony terrorism charge.
Justin Carter’s father Jack said he was in favor of the legislation, but wonders if it would have helped his son. “They should be allowed to delete it, but then again is it really deleted?” he asked hypothetically, adding that he wondered if his son had deleted his post if that would have been seen as destroying evidence.
Speaking about the Internet, Jack Carter said, “It’s a whole new territory, it grew faster than the laws did. We’re trying to come up with things to make it all neat. There’s collateral damage — my son being one of them.”
In addition to having the ability to eradicate online content, the bill also prohibits websites from knowingly marketing and advertising certain products, including alcoholic beverages, firearms, ammunition, tobacco products, fireworks, lottery tickets, tattoos and drug paraphernalia, to minors.
Think before you post
While the legislation has its share of supporters, it also has its share of critics, who caution that young people should not view the law as “an excuse to be reckless about their digital lives.”
In a blog post, attorney Bradley Shear pointed out that
“the law does not enable a minor to require a digital platform remove content that another person posts about that minor. In addition, Internet companies are only required to remove publicly available content a minor posts and not data that is not publicly viewable.
“While SB-568 may help protect California minors from some digital mistakes that may harm their ability to gain acceptance into the college of their dreams, it should not replace educating our children about these issues.”
The idea that children will come to associate the Internet with having an “undo” button of sorts has also been a concern for some, since the bill does not require companies to remove data from its servers or any other website that may have shared the material. Plus, in order for a website to erase a person’s data, they have to collect information about a minor, which includes proof they are under the age of 18 and are a California resident.
The Center for Democracy and Technology — a nonprofit group that advocates for an open Internet– has also taken an issue with the legislation, saying that the measure could lead to minors having less access to the Internet.
“We are principally concerned that this legal uncertainty for website operators will discourage them from developing content and services tailored to younger users,” the group said, “and will lead popular sites and services that may appeal to minors to prohibit minors from using their services.”
Some who applaud the idea behind the law have also called it impractical, since companies would be forced to have multiple policies for underage residents of different states.
Stephen Balkam is the president of the Family Online Safety Institute, which advises companies on online safety issues. He said that while the legislation is well-intended, he has some concerns, such as a lack of congressional oversight on the issue. “Where California leads, others follow,” he said. “I think it will be a mess.”
Since the Internet doesn’t have state boundaries, Mali Friedman, a lawyer at the San Francisco office of the national law firm Covington & Burling, said that most websites will simply comply with the rules of the most restrictive state.
Meanwhile, does the person have to be a minor when they ask for a post to be removed, or can an adult ask to remove something they posted when they were a minor? And does the law apply to all websites in the U.S. or just those based in California?
If the law is extended to a website in another state such as Kansas, it may be a violation of the dormant Commerce Clause in the U.S. Constitution, which gives the ability to regulate interstate commerce solely to the U.S. Congress. In other words, while states have power granted to them under the Tenth Amendment to exercise legislative power over state constituents, no state has the legal or constitutional ability to make and enforce laws for those in other states.
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