Erasing Youthful Indiscretions Online: California’s “Internet Eraser” Law

October 11, 2013

Clear HistoryCalifornia recently approved a bill that will require websites, internet services, and mobile apps to provide an “eraser button” to minors. The law consists of two primary requirements. One requires internet companies to provide a way for a minor to delete or request removal of content before it’s transmitted to a third party. The law also forbids Internet companies from marketing “forbidden” products to minors such as alcohol, tobacco and guns.

Pull up the Senate Bill on WestlawNext by clicking on Proposed & Enacted Legislation, then California. Next, click on the link to California Enacted Legislation (Session Laws)

Run a plain language search for:

INTERNET ERASER

That pulls up: 2013 Cal. Legis. Serv. Ch. 336 (S.B. 568)

The legislation creates CA BUS & PROF § 22580 & § 22581 which apply to operators of “…an Internet Web site, online service, online application, or mobile application directed to minors…” or “an operator of an Internet Web site, online service, online application, or mobile application that has actual knowledge that a minor is using its Internet Web site, online service, online application, or mobile application…”

The law has been criticized for its alleged ambiguities. Professor Eric Goldman  identifies a few potential sticking points at the Technology and Marketing Law Blog, such as confusion as to how one can determine whether a website or app is “directed” to minors, or how the right to remove content can be exercised (must one request removal while still a minor, or can an 85 year old request “ancient” content to be removed). The post also mentions that there is an exemption if the minors were paid or received “other consideration” for the content, and it isn’t clear what “other consideration” might consist of. See also Professor Goldman’s comments on This Week in Law, Episode 230. Professor Goldman’s blog post can be found on Westlaw at 2013 WLNR 24780369.

ADDITIONAL RESEARCH REFERENCES

I also ran this simple plain language search in WestlawNext Secondary Sources:

INTERNET PROTECTION FOR MINORS

Among the results is a 2006 law review article by M. Megan McCune which surveys federal legislation aimed at protecting children online including the Communications Decency Act, Child Pornography Prevent Act, Child Online Protection Act, and the Children’s Internet Protection Act.

VIRTUAL LOLLIPOPS AND LOST PUPPIES: HOW FAR CAN STATES GO TO PROTECT MINORS THROUGH THE USE OF INTERNET LURING LAWS, 14 CommLaw Conspectus 503 (2006)

The article also discusses state internet “luring” statutes that have criminalized internet use intended to “lure” children into circumstances where they may be sexually abused. The article discusses potential constitutional obstacles to such statutes, such as First Amendment free speech protection, and dormant Commerce Clause, which limits states’ ability to regulate interstate commerce.