We’ve all done it: typed or tapped out a message, posted it online, and immediately wished we hadn’t and that we could just erase it from the Internet forever. Now, if you are a California minor, you can. Sort of.
California Governor Jerry Brown recently signed into law S.B. 568, the first bill of its kind in the nation. S.B. 568 enacts two new statutes under the title “Privacy Rights for California Minors in the Digital World.” The first, Business and Professions Code section 22580, prohibits advertising certain products to minors online (see blog post here). The second, Business and Professions Code section 22581, requires businesses to provide an online “eraser button” for remorseful minors.
Under the new law, which takes effect January 1, 2015, websites and apps primarily directed to minors, or known to be used by minors, will be required to notify minors of their right to remove information they have posted, and provide an easy to use method (i.e., an “eraser button”) so that their users under the age of 18 can delete a posting or picture before it is transmitted to a third party. Once the posting has been transmitted or re-posted by a third party, however, the website is not required to delete those posts.
The purpose of the “eraser button” is essentially to protect teens from themselves – once they have had a chance to reflect on the potentially embarrassing nature of a posting, or other consequences that may flow from it (for example, the impact on a pending college or job application), the presumption is the teen may reconsider. The “eraser button” gives him or her a second chance – albeit brief – before it is too late, allowing escape from the sometimes punishing reality that the Internet is a permanent record. Indeed, recognizing the value to users of an “eraser button,” major social media sites such as Facebook, Twitter, Instagram, and Vine already have a delete feature for users of any age.
The bill’s supporters hope that other states, or federal legislators, will follow California’s lead. Opponents argue it is unworkable to expect websites and apps to follow different policies based on different states’ laws, and that the law is without any real impact since nearly all activity on the Internet is reposted and archived in one way or another and the law is effective only before the posting is transmitted to others. Critics have also complained that some aspects of the legislation are vague, and the law may be subject to constitutional challenge based on First Amendment and federal preemption under the federal Children’s Online Privacy Protection Act (“COPPA”), which governs the collection and use for marketing of personal information about children under 13.
The new online “eraser button” law does not independently provide a private right of action or otherwise specify the consequences for failure to comply. However, once the law goes into effect in 2015, it could potentially be enforced by a state or local enforcement agency under statutes such as California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 in action for injunctive relief, and could potentially be cited as the basis for private lawsuits under those statutes.