When President Joe Biden expressed his concerns about children’s Internet usage during his 2023 State of the Union address, Louisiana certainly agreed with that concern. On June 8, 2023, the Louisiana legislature enrolled for Governor John Bel Edwards a bill intended to extend parental consent requirements on social media use by children under the age of 16. This bill is only one of many that have been proposed and passed by states and the federal government to restrict or limit children’s access to social media. Some of the most notable include California’s Age Appropriate Design (requiring tech companies to design applications that implement privacy by default), the Utah social media regulation amendments (requiring parental consent for users under 18, imposing a curfew for social media use, and restricting messaging abilities), and the proposed federal Protecting Kids on Social Media Act (setting a minimum age of 13 for social media). If signed, the Louisiana bill would become effective on July 1, 2024.
The bill applies only to social media companies, as it is a direct response to rising concerns about child mental health and development, cyberbullying, addiction, and data collection associated with social media platforms. “Social media company” means a person or entity that provides a social media platform that is an interactive computer service to at least 5 million users. A “social media platform” is a public or semipublic internet-based service or application with Louisiana users that connects users for social interaction and allows users to do all of the following: (1) construct a profile for signing in and using the service; (2) create a list of other users that the user has a social or virtual connection, including subscribing to content related to other users; and (3) create content viewable to others. Certain services for K-12 schools are not considered to meet the criterion for connecting users for social interaction.
In an effort limit the applicability to just the large social media companies, the bill lists 21 exceptions to the definition “social media platform.” The services included in that list are services where the predominant or exclusive function are:
- A service that does not allow minors to use the platform and uses commercially reasonable age assurance mechanisms to prevent minors from becoming a user.
- Streaming services that only provides media to end users.
- News, sports, entertainment, or other non-user generated content providers where any user interaction is limited to commenting on the service provided content.
- Online shopping where the only user interaction is limited to uploading items for sale or submitting product reviews.
- Interactive or virtual gaming where the user-provided content and communication is for the purpose of the gaming, educational entertainment, or associated entertainment.
- Photographic editing services where interaction is limited to liking or commenting.
- Sufficiently moderated single purpose community groups for public safety.
- Business-to-business software, teleconferencing services, and technical support.
- Cloud computing services, including cloud storage and shared document collaboration.
- Academic, scholarly, or genealogical research.
- Internet access and broadband service.
- Classified advertising services with limited user interaction.
- Services used under the direction of an educational entity where the majority of content is provider-created or posted and the ability to interact is directly related to the provider’s content.
If an online service does qualify as a social media platform that is not subject to these exceptions, then the social media company must obtain express parental consent for a minor to use its services. “Minor” is any person under the age of 16 that is not emancipated or married. Express parental consent has been a requirement since 2000 for websites directed towards children under the age of 13 through the Children’s Online Privacy Protection Act (COPPA). The Louisiana bill will extend that requirement to children under 16 for the social media companies, regardless of whether they are directed at children.
The bill does offer several methods to obtain express parental consent but allows for “any other commercially reasonable method” to allow for changes in technology. Methods include a form the parent can mail in or sign, a telephone number to call in consent, video conferencing to confirm consent, collecting the parent’s ID and then deleting it after verification, and responding to an email and taking additional steps to verify the parent’s identity (known as the “email plus” method). Interestingly, some of the methods listed in the bill are methods that the Federal Trade Commission has said are not sufficient for age verification under COPPA. Namely, the “email plus” method is only acceptable under COPPA if the child’s information is only used internally and will not be disclosed to others. The Department of Justice may develop additional rules for age verification and parental consent.
The social media platform must also offer the consenting parent additional controls over their child’s use of the services by enabling account supervision functionality. This function must allow a parent to view the minor accounts’ privacy settings, set daily time limits for the service, schedule breaks, and offer the minor the option to notify their parents when reporting a person or issue. The bill is silent on whether the account supervision will be turned off once the user is 16.
The social media platform must also curtail the way they use data collected from users under 16. First, the social media platform must prohibit adults from direct messaging a minor unless the minor is already connected to the adult on the service. This requirement is similar to one imposed by the FTC in a consent judgment against Meta. Second, the social media company cannot base advertising to the minor on any personal information other than age and location. Last, the social media company cannot collect or use the minor’s personal information from posts, content, messages, or usage activities for reasons beyond what is necessary for the original reason it was collected or disclosed.
Enforcement is solely by the division of public protection of the Department of Justice, and no private right of action is available. However, any person can submit a complaint to the division. Penalties for non-compliance can be an administrative fine of up to $2,500 per violation, injunctions, forfeiture of any profits, damages to the aggrieved person, and any other relief the court considers reasonable and necessary. The bill does provide for a 45-day cure period for violators to cure the violation before enforcement. Any money collected by the division for violations are to be used for consumer protection and education purposes.
With this bill, Louisiana joins a growing collection of states acting to effectively raise COPPA applicability for social media companies. Whether the efforts will be effective in limiting problematic social media use for children remains to be seen, but the bill provides for an annual reporting requirement on its effectiveness. Considering the FTC heavy focus on children’s privacy (accompanied by heavy fines), social media use by children will continue being strictly scrutinized.