Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

LinkedIN

Lingo Telecom, a Georgia-based VoIP service operator, has agreed to pay a <a href="https://www.nbcnews.com/politics/2024-election/telecom-company-agrees-1-million-fine-biden-deepfake-rcna167564" target="_blank">$1 million fine</a> for using AI-generated deepfake technology to spoof President Joe Biden’s voice in a series of robocalls. A Louisiana political consultant had <a href="https://www.reuters.com/world/us/us-political-consultant-indicted-over-ai-generated-biden-robocalls-2024-05-23/" target="_blank">previously been indicted</a> for arranging and financing the calls, which targeted New Hampshire and encouraged Democrats to skip voting in the state’s primary. This action comes on the heels of the unanimous passage of the DEFIANCE Act by the U.S. Senate last month. As we <a href="https://www.sociallyawareblog.com/topics/social-links-july-2024" target="_blank">reported previously</a>, the DEFIANCE Act addresses deepfake pornography but is likely to open the door to additional legal action for bad actors using AI deepfakes.Google has <a href="https://arstechnica.com/tech-policy/2024/08/google-avoids-link-tax-bill-with-deal-to-fund-california-journalism-and-ai/" target="_blank">reached an agreement</a> with California lawmakers to fund newsrooms and launch an AI accelerator intended to “support journalists’ work.” The plan commits the tech giant to $167.5 million over five years, with the state initially contributing an additional $30 million, and $10 million in each of the next four years. The state will in turn shelve the <a href="https://digitaldemocracy.calmatters.org/bills/ca_202320240ab886" target="_blank">California Journalism Preservation Act</a>, which would have forced Google and other major tech companies to pay news companies to distribute their content online. Governor Gavin Newsom remarked, “[The deal is] a major breakthrough in ensuring the survival of newsrooms and bolstering local journalism across California — leveraging substantial tech industry resources without imposing new taxes on Californians.” Journalism unions in California are <a href="https://www.mediaguildwest.org/news/californias-journalists-do-not-consent-to-this-shakedown" target="_blank">significantly less enthusiastic</a>. In a joint statement, Media Guild of the West, NewsGuild-CWA, and others wrote, “The future of journalism should not be decided in backroom deals. The Legislature embarked on an effort to regulate monopolies and failed terribly. Now we question whether the state has done more harm than good.”Major record labels have <a href="https://www.reuters.com/legal/litigation/major-labels-ask-us-supreme-court-reconsider-1-bln-cox-copyright-case-2024-08-21/" target="_blank">asked the Supreme Court</a> to overturn a decision that wiped out a <a href="https://variety.com/2019/music/news/cox-communications-music-copyright-suit-verdict-1203449254/" target="_blank">$1 billion copyright infringement</a> verdict against Cox Communications. In February 2024, the 4th Circuit Court of Appeals in Virginia <a href="https://variety.com/2024/music/news/major-labels-billion-cox-communications-overturned-1235917187/" target="_blank">overturned the jury verdict</a> that determined Cox was vicariously liable for its users’ copyright infringement. If a higher court hears the case, the decision may be consequential for other copyright litigation. Read the <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/znvnxgwbjvl/USA%20COURT%20COX%20COPYRIGHT%20labelcert.pdf" target="_blank">petition in its entirety</a>.Since <a href="https://www.cnbc.com/2024/03/21/reddit-ipo-rddt-starts-trading-on-nyse.html" target="_blank">going public</a> in March 2024, Reddit has taken a unique approach to advertising that it is betting will set the longtime social media giant apart from tech rivals like Google. As Reddit users are for the most part anonymous, demographic targeting by age, gender, or location isn’t a practical approach. Instead, an “<a href="https://finance.yahoo.com/news/reddit-battles-meta-google-using-090003960.html" target="_blank">interest-based</a>” strategy positions ads within the site’s niche communities (known as subreddits) in a more conversational style. With the online advertising economy based so heavily on granular user data, pivoting to a more general dataset is a gamble the company is confident will pay off. It may also be effective to avoid some of the privacy concerns that Reddit’s rivals <a href="https://www.forbes.com/councils/forbescommunicationscouncil/2024/08/23/the-balancing-act-googles-cookie-conundrum-and-the-future-of-advertising/" target="_blank">face</a> with their more personalized approach. <a href="https://www.adexchanger.com/platforms/coo-jen-wong-on-why-reddit-is-ready-to-become-a-mature-advertising-business/" target="_blank">COO Jen Wong</a> feels the site’s anonymity allows users to be much more open and honest in expressing interests, and she said, “When people come to Reddit, they reveal things about themselves that they would not reveal on other platforms.” Reddit’s stock price is up 57% from its $34 initial public offering price.

Social Links: Deepfakes, AI, and the Continuing Saga of Reddit

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links: Deepfakes, AI, and the Continuing Saga of Reddit

Lingo Telecom, a Georgia-based VoIP service operator, has agreed to pay a $1 million fine for using AI-generated deepfake technology to spoof President Joe Biden’s voice in a series of robocalls.

Social media giant TikTok has been <a href="https://www.theguardian.com/technology/article/2024/aug/02/us-sues-tiktok-bytedance-child-privacy" target="_blank">sued by the United States</a> for allegedly collecting data on children under thirteen illegally. The suit claims the app, which is owned by China-based parent company ByteDance, allowed millions of children to create accounts without parental knowledge or consent despite <a href="https://www.wired.com/story/tiktok-ftc-record-fine-childrens-privacy/" target="_blank">paying a fine of $5.7 million</a> for similar activity in 2019. The United States is seeking penalties of up to $51,744 per violation, per day. The suit comes just three months after TikTok sued the U.S. government over a law that could ban it across the country. Read the <a href="https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rS0wyWEeUli0/v0" target="_blank">complaint</a> in its entirety.The U.S. Court of Appeals for the D.C. Circuit <a href="https://publishers.org/news/dc-circuit-court-rejects-effs-challenge-to-dmca-confirms-symbiotic-relationship-of-copyright-law-and-free-expression/" target="_blank">has rejected</a> a challenge to one aspect of the Digital Millennium Copyright Act (<a href="https://www.copyright.gov/dmca/" target="_blank">DMCA</a>). The action was initially brought by Electronic Frontiers Foundation (EFF) in 2016 and argued that Section 1201 of the DMCA – which prohibits the circumvention of technological measures that protect copyrighted works – is unconstitutional under the First Amendment. The <a href="https://publishers.org/wp-content/uploads/2024/08/Green-v-DOJ-opinion-2024.08.02.pdf" target="_blank">ruling</a> filed by Judge Nina Pillard states that while the First Amendment protects the right to read, it does not guarantee unrestricted access to all reading materials one might desire and does not guarantee potential fair users exceptional access to copyrighted works they wish to include in their expression. EFF maintains that the decision favors large commercial entities over individual fair users and sets a dangerous precedent for the future.Pickpocketing via tweet? Investor and online financial personality Andrew Left <a href="https://finance.yahoo.com/news/short-seller-andrew-left-deleted-110000470.html" target="_blank">deleted his research firm’s entire tweet history</a> from social media platform X ahead of his 19-count <a href="https://prod-i.a.dj.com/public/resources/documents/andrew-left-indictment07-26-2024.pdf" target="_blank">securities fraud indictment</a> and <a href="https://storage.courtlistener.com/recap/gov.uscourts.cacd.934731/gov.uscourts.cacd.934731.1.0.pdf">SEC lawsuit.</a> According to the SEC complaint, Left allegedly engaged in bait-and-switch schemes that involved making public recommendations contrary to his private trading positions which netted him $20 million in illicit gains between 2018 and 2023. The SEC also accused Left of sharing his planned announcements with at least two hedge funds in advance, receiving a portion of their trading profits in return. Left used X as a platform to promote short positions on a number of major companies including Roku, American Airlines, and Beyond Meat. The government maintains that Left’s public tweets were intended to illegally manipulate the market.<a href="https://www.theguardian.com/technology/article/2024/aug/06/elon-musk-x-advertising-lawsuit-antitrust" target="_blank">X has filed suit</a> against several major companies and a global advertising alliance. The suit accuses them of conspiring to boycott the social media platform and withhold advertising dollars in an attempt to damage the platform. Advertising revenue on X has declined since Elon Musk acquired the company in 2022, with many brands expressing concerns over the platform’s lack of content moderation. X chief executive Linda Yaccarino <a href="https://x.com/lindayaX/status/1820838134470328676" target="_blank">characterized the alleged boycott</a> in terms more sociological than financial, writing: “The consequence – perhaps the intent – of this boycott was to seek to deprive X’s users, be they sports fans, gamers, journalists, activists, parents or political and corporate leaders, of the Global Town Square.”Legislation targeting malicious use of deepfake technology <a href="https://www.govtech.com/policy/lawmakers-introduce-bipartisan-bill-to-fight-ai-deepfakes" target="_blank">continues to expand</a> and seems to be among the very few issues that can reliably garner bipartisan support. Representatives Ashley Hinson (R-IA) and Jake Auchincloss (D-MA) have <a href="https://auchincloss.house.gov/media/press-releases/release-auchincloss-introduces-bipartisan-bill-to-tackle-rise-in-non-consensualdeepfakes-on-social-media-platforms" target="_blank">introduced a bill</a> that would eliminate Section 230 protections for tech companies that allow deepfake pornography on their platforms. The bill would require tech firms to implement a “clear and accessible process for reporting, investigating and removing harmful content within 24 hours.” Additionally, it would require data logging that victims could access and a process for removing the offending content. This House bill is on the heels of related deepfake legislation that recently <a href="https://gizmodo.com/anti-deepfake-porn-bill-unanimously-passes-in-the-senate-2000479051" target="_blank">passed the Senate unanimously</a>.

Social Links: August 2024

Social Links: August 2024

Social media giant TikTok has been sued by the United States for allegedly collecting data on children under thirteen illegally. 

In case you haven’t noticed, state legislatures have been hard at work drafting, passing, and trying to pass laws that govern minors’ use of social media. Several states have passed laws requiring social media companies to implement certain policies, including age verification and parental consent for use of their platforms. Lawmakers in other states have introduced similar laws that are currently working their way through the legislative process and may be enacted soon. Below is a roundup of pending or enacted laws introduced in recent months.These enacted laws and in-process bills show a broad state-level trend towards efforts to hold social media companies responsible for minors on their platforms. Common themes include age verification and parental consent, but these are certainly not universal, and there are a variety of other requirements, making compliance an interesting question. As noted below, several of these laws have already been challenged in court. As the laws begin to take effect, companies will need to implement new policies and procedures to ensure platforms are compliant despite an ever-changing legislative and judicial backdrop.<a href="https://www.akleg.gov/basis/Bill/Text/33?Hsid=HB0254A#:~:text=HB%20254%3A%20%22An%20Act%20relating,to%20minors%20on%20the%20Internet.%22" target="_blank">Alaska House Bill 254</a>, which was <a href="https://alaskabeacon.com/2024/04/26/alaska-house-approves-social-media-ban-for-young-kids-online-pornography-id-checks-for-all/" target="_blank">passed in the House</a> on April 26, 2024 and now advances to the Senate, would prohibit children under age 14 from using social media, require parents to sign off on children aged 14 and 15 using social media, and require providers of internet pornography to verify that viewers are at least 18 years old.Arkansas’ <a href="https://www.arkleg.state.ar.us/Bills/Detail?id=SB396&ddBienniumSession=2023%2F2023R" target="_blank">Social Media Safety Act</a>, first introduced in March 2023, would require age verification of users by social media companies and parental consent for minors using such platforms. However, in September 2023, a federal judge <a href="https://www.cnn.com/2023/09/01/business/arkansas-social-media-age-verification/index.html" target="_blank">blocked the law</a> from going into effect while a lawsuit brought by NetChoice is resolved.California is seeing movement on several social media laws. First, the state adopted the <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220AB2273&showamends=false" target="_blank">Age-Appropriate Design Code Act</a> in September 2022, requiring platform providers to make default privacy settings provide a “high level” of privacy, assess whether their platforms could harm children, and use age-appropriate language on their platforms. The law was subsequently <a href="#" target="_blank">#</a><a href="https://www.theverge.com/2023/9/18/23879489/california-age-appropriate-design-code-act-blocked-unconstitutional-first-amendment-injunction">blocked by a federal judge</a> in September 2023 in a lawsuit brought by NetChoice. Second, the Protecting Our Kids from Social Media Addiction bill, <a href="https://sd09.senate.ca.gov/news/20240129-sen-skinner-introduces-landmark-bill-protect-youth-social-media-addiction" target="_blank">introduced on January 29, 2024</a>, would prohibit platforms from providing an “addictive social media feed” or pushing notifications during school and overnight hours to minors without parental consent. Third, the pending <a href="https://trackbill.com/bill/california-senate-bill-1444-let-parents-choose-protection-act-of-2024/2520714/#:~:text=The%20bill%20would%20prohibit%20the,the%20account%20with%20the%20large" target="_blank">Let Parents Choose Protection Act</a>, introduced on February 16, 2024, would require providers of “large social media platforms” to make available to certain safety software providers a set of application programming interfaces (APIs) that allow them to monitor children’s activities.Colorado has two new social media laws. <a href="https://leg.colorado.gov/bills/hb24-1136" target="_blank">Introduced in January 2024</a>, <a href="https://leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_1136_rer.pdf">HB 24-1136</a> would require social media companies to push notifications to minors who have spent a certain amount of time on social media platforms at certain hours to help them understand the effects of using social media. <a href="https://leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_158_01.pdf">Introduced in February 2024</a>, <a href="https://leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_158_01.pdf" target="_blank">Senate Bill 24-158</a> would require social media companies to verify the age of users, provide certain tools to parents and minors, and notify minors about harms of social media use.Connecticut updated its <a href="https://www.cga.ct.gov/2023/ACT/PA/PDF/2023PA-00056-R00SB-00003-PA.PDF" target="_blank">Data Privacy Act</a> to <a href="https://www.bloomberglaw.com/bloomberglawnews/in-house-counsel/XCDTIMES000000?bna_news_filter=in-house-counsel#jcite" target="_blank">require social media platforms</a> to remove minors’ accounts when requested and prohibit such platforms from processing minors’ personal data. The changes will come into effect on July 1, 2024.As we previously <a href="https://www.sociallyawareblog.com/topics/social-links-april-2024" target="_blank">discussed</a>, Florida enacted <a href="https://www.flsenate.gov/Session/Bill/2024/3" target="_blank">HB 3</a> on March 25, 2024, <a href="https://www.flgov.com/2024/03/25/governor-desantis-signs-legislation-to-protect-children-and-uphold-parental-rights/#:~:text=%E2%80%94Today%2C%20Governor%20Ron%20DeSantis%20signed,%2C%E2%80%9D%20said%20Governor%20Ron%20DeSantis." target="_blank">requiring social media companies</a> to prohibit minors under age 14 from holding accounts, allowing parents to decide if 14- and 15-year-olds can have accounts, and requiring “inappropriate” websites to verify the age of minor users.Georgia enacted <a href="https://www.legis.ga.gov/legislation/66023" target="_blank">SB 351</a> on April 23, 2024, which <a href="https://www.bloomberglaw.com/bloomberglawnews/states-of-play/XFHLJFOS000000?bna_news_filter=states-of-play#jcite" target="_blank">requires children under 16</a> to get parental consent to create social media accounts, prohibits social media use on school devices, requires pornography sites to verify users are at least 18 years old, and requires education on social media use.The Iowa House approved pending <a href="https://www.legis.iowa.gov/legislation/BillBook?ga=90&ba=HF2523" target="_blank">House File 2523</a> on March 6, 2024. The bill would prohibit minors under age 18 from creating accounts on social media platforms without permission from a parent or guardian who can also monitor their activity.<a href="https://apps.legislature.ky.gov/record/24rs/hb450.html" target="_blank">House Bill 450</a> was introduced in the Kentucky House on February 1, 2024. It would require social media companies to verify that users are at least 18 years old and require parental consent for users under age 18. It would also allow parents to view their children’s online activity.Louisiana enacted the <a href="https://legis.la.gov/legis/BillInfo.aspx?s=23RS&b=SB162&sbi=y" target="_blank">Secure Online Interaction and Age Limitation Act</a> on <a href="https://apps.legislature.ky.gov/record/24rs/hb450.html" target="_blank">June 28, 2023</a>, which requires social media platforms to verify user age, get parental consent for minors to open accounts, allow parents to supervise minors’ accounts, and prevent unwanted messages from adults to minors. It would also prohibit use of minors’ personal information to display advertisements and unnecessary collection of data from minors.On May 9, 2024, Maryland enacted the <a href="https://marylandkidscode.com/" target="_blank">Maryland Kids Code</a>, which requires age-appropriate design of online products and prevents companies from using minors’ data for targeted advertising or providing addictive content.The pending Minnesota <a href="https://www.house.mn.gov/bills/Info/HF2257/93/2023/0" target="_blank">Age-Appropriate Design Code Act</a>, introduced in February 2023, would require online services likely to be accessed by children to implement certain design features and settings that prioritize privacy and data protection for minors.As we’ve <a href="https://www.sociallyawareblog.com/topics/social-links-april-2024" target="_blank">noted</a> before, New York’s <a href="https://www.nysenate.gov/legislation/bills/2023/S7694" target="_blank">Stop Addictive Feeds Exploitation (SAFE) for Kids Act</a>, introduced on October 13, 2023 and currently pending in the Senate, would prohibit social media companies from using certain addictive feed algorithms for minors without parental consent and prohibit platforms from sending nighttime notifications to minors. The state’s related <a href="https://www.nysenate.gov/legislation/bills/2023/S7695/amendment/A" target="_blank">Child Data Protection Act</a>, introduced on October 13, 2023, would prevent websites from collecting personal data from minors for advertising.North Carolina lawmakers introduced <a href="https://www.ncleg.gov/BillLookUp/2023/H644" target="_blank">House Bill 644</a> in April 2023. If passed, the bill would require social media companies to verify age to provide age-appropriate content for minors and prohibit such companies from using a minors’ data for advertising and recommendations.The currently pending <a href="https://www.ncleg.gov/BillLookUp/2023/H773" target="_blank">Let Parents Choose Protection Act</a> in North Carolina, introduced in April 2023, would require providers of large social media platforms to work with providers of safety software to allow them to monitor minors’ accounts.Ohio’s <a href="https://codes.ohio.gov/ohio-revised-code/section-1349.09" target="_blank">Social Media Parental Notification Act</a>, enacted in July 2023, would require social media platforms to get parental consent for users under age 16. It was <a href="https://thehill.com/policy/technology/4454087-federal-judge-blocks-ohio-law-requiring-parental-consent-for-social-media-use/" target="_blank">blocked by a federal judge</a> in February 2024 in a case brought by NetChoice (see our prior <a href="https://www.sociallyawareblog.com/topics/court-prohibits-ohio-s-ag-from-enforcing-social-media-parental-notification-act" target="_blank">article</a> on this case).Oklahoma <a href="http://www.oklegislature.gov/BillInfo.aspx?Bill=hb3914&Session=2400" target="_blank">House Bill 3914</a>, which <a href="https://www.okhouse.gov/posts/news-20240314_7" target="_blank">passed in the House</a> on March 14, 2024 and is now in the Senate, would require social media companies to verify users are over age 18 and require parental consent for users who are 16 to 18 years old.The pending <a href="https://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2023&sind=0&body=H&type=B&bn=2017" target="_blank">Pennsylvania House Bill 2017</a>, passed by the House on May 8, 2024, would require social media companies to verify users’ ages and obtain consent from a parent or guardian for minor users. If enacted, it would also allow parents to view the privacy settings of minors’ accounts.South Carolina’s <a href="https://www.scstatehouse.gov/sess125_2023-2024/prever/4700_20240206.htm" target="_blank">Social Media Regulation Act</a>, passed by the House in February 2024 and currently in the Senate, would prohibit social media companies from allowing minors to have accounts without parental consent, require such companies to prevent adults from messaging minors’ accounts, develop policies to filter certain content from minors’ accounts, and prohibit advertising based on minors’ personal data.Tennessee enacted the <a href="https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB1891" target="_blank">Protecting Children from Social Media Act</a> on May 2, 2024. The law requires social media sites to verify the age of potential users and obtain parental consent for minor users. Such sites must also provide tools for parents to supervise minors’ accounts.Texas enacted the <a href="https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HB18" target="_blank">Securing Children Online through Parental Empowerment Act</a> (“SCOPE Act”) on June 13, 2023. This law requires certain “digital service providers” to verify the ages of users and limits such providers from collecting personal information from minors. Providers must also develop strategies to prevent minors’ exposure to harmful materials.As we previously <a href="https://www.sociallyawareblog.com/topics/social-links-april-2024" target="_blank">reported</a>, Utah <a href="https://apnews.com/article/utah-tiktok-social-media-youth-aeaa2bd114d50249216d8d1567a97a2c" target="_blank">repealed and replaced</a> its <a href="https://socialmedia.utah.gov/" target="_blank">Social Media Regulation Act</a>, which was previously challenged by NetChoice, on March 7, 2024. The law requires social media companies to determine whether users are minors, but no longer requires parental consent. It also requires default privacy settings for minors’ accounts, limits data collection from minors, prohibits certain addictive functions, and allows parents to monitor children’s activity.<a href="https://legislature.vermont.gov/bill/status/2024/S.289" target="_blank">Vermont’s Kids Code</a>, passed in the Senate in March 2024 and currently in the House, would require covered companies to implement default privacy settings and provide certain protections to minors.West Virginia’s <a href="https://www.wvlegislature.gov/Bill_Status/bills_history.cfm?INPUT=5226&year=2024&sessiontype=rs" target="_blank">Child Social Media Protection</a> bill, introduced in January 2024 and currently pending, would prohibit minors from holding social media accounts without parental consent and require social media companies to verify the ages of account holders.

State Lawmakers Introduce Laws Governing Teen Use of Social Media

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Associate

Lindsay is an associate in the Technology Transactions Group of Morrison Foerster.

Lindsay B. Harris

Lindsay Harris

State Lawmakers Introduce Laws Governing Teen Use of Social Media

In case you haven’t noticed, state legislatures have been hard at work drafting, passing, and trying to pass laws that govern minors’ use of social media. 

A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16. NetChoice LLC, an industry group whose membership includes a number of large social media companies, challenged the legislation on behalf of its members and their users.The Act would impose age verification measures on social media platforms and require parental consent for users under the age of 16. The Ohio law applies specifically to platforms that target children or are likely to be accessed by children, which is determined based on the following factors:(1) Subject matter;(2) Language;(3) Design elements;(4) Visual content;(5) Use of animated characters or child-oriented activities and incentives;(6) Music or other audio content;(7) Age of models;(8) Presence of child celebrities or celebrities who appeal to children;(9) Advertisements;(10) Empirical evidence regarding audience composition; and(11) Evidence regarding the intended audience.Additionally, the Act makes exceptions for product review sites and “established and widely recognized” news sites with commenting functionality. Penalties for non-compliance include fines of (i) up to $1000 per day for the first 60 days of noncompliance; (ii) up to an additional $5000 per day for days 61–90; and (iii) up to an additional $10,000 per day for days 91 and beyond. While aimed at protecting minors online, the legislation raises serious concerns about free speech, vagueness, and compliance burdens on digital platforms.NetChoice, a trade association representing online businesses, filed a motion for a preliminary injunction against Ohio Attorney General Dave Yost, arguing that the Act violates the First and Fourteenth Amendment rights of both NetChoice’s members and their users. NetChoice contended that the law unduly restricts freedom of expression and the right to access information on the internet. Moreover, NetChoice argued that the law is vague and would cause some companies to needlessly spend large amounts of money to comply with a law which may not even apply to them.The court first determined that NetChoice had standing to bring claims on behalf of both itself and its members, based on economic harms to its members as well as constitutional harms, such as the chilling effect on free speech if the court did not hear NetChoice’s claims. Next, the court scrutinized the Act through the lens of both the First and Fourteenth Amendments, considering its implications for free speech and the potential harm it posed to social media platforms and their users.1. Strict Scrutiny and Content Based Restrictions: The court determined that the Act was subject to strict scrutiny, the highest standard of review, because it is “content based.” Strict scrutiny requires the government to show that a law uses a narrowly tailored approach to serve a compelling government interest. The Attorney General argued that, by applying to sites that “target children” or are “reasonably anticipated to be accessed by children,” the Ohio law was simply tailoring its application to platforms that pose a risk to minors’ privacy, health, and safety rather than targeting any particular content. The court held, however, that provisions of the law that applied to sites with certain features were inherently content based, since they conveyed a message about the community that the site intended to curate and foster. Moreover, the court pointed to the exceptions for “established” news sites and product review sites as obviously content based (as an example, the court asked why the law didn’t also include exceptions for book and film review sites). Therefore, the court determined that the Act selectively regulates speech and is subject to strict scrutiny review.2. Vagueness and Overbreadth: The court found the Act’s vagueness and broad application potentially chilled free speech, with unclear compliance requirements for platforms. For example, the Attorney General argued that the Ohio law is concerned with protecting minors from entering into terms of service that permit use of their personal data. The court noted, however, that the law is both overbroad because it completely blocks minors from these sites absent parental consent, and also underinclusive because it allows that “a child can still agree to a contract with the New York Times without their parent’s consent, but not with Facebook.” The Attorney General also recited a litany of potential psychological and real-world harms to children from use of certain social media sites, to which the court replied that the law “is a breathtakingly blunt instrument for reducing social media’s harm to children.” With respect to vagueness issues under the Fourteenth Amendment, the court pointed to the law’s “eyebrow-raising exception” for “established” and “widely recognized” media outlets and concluded that “[s]uch capacious and subjective language practically invites arbitrary application of the law.”3. Impact on Minors’ Rights: Highlighting the 2011 Supreme Court case, Brown v. Ent. Merchants Ass’n, which invalidated a California law prohibiting the sale of violent video games to minors, the court noted that the Ohio law does not enforce parental authority, as the Attorney General argued, but rather imposes governmental authority, subject to a parental veto. The court also made the converse point, that online platforms have a right to disseminate protected speech to both minors and adults.4. Balance of Equities and the Public Interest: After concluding that NetChoice had shown a strong likelihood of success on the merits and likelihood of irreparable harm, the court considered the final two preliminary injunction factors, whether the injunction would harm others and whether the public interest would be served by the injunction, noting that these two factors “merge when the government is a party.” While the Attorney General contended that the public interest would be served by allowing the law to go into effect and protect minors, the court was convinced by NetChoice’s argument that “the State has no interest in enforcing laws that are unconstitutional.” Accordingly, the court granted the preliminary injunction.This case is one of a number of recent and pending cases pitting legislative attempts to regulate social media platforms against the free speech rights and other constitutional rights of the platforms and their users. We will be following the case as it progresses, and will report back on any further developments.

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16.

Welcome to 2024 from Socially Aware! We’ve been tracking developments in the law and business of social media and related topics from end of last year into the beginning of the new year.Here are some of the trending developments that have caught our attention.Michael Cohen, Donald Trump’s former lawyer, used Google’s AI tool, Bard, to <a href="https://www.axios.com/2023/12/29/michael-cohen-ai-fake-legal-cases" target="_blank">find cases in support of his release from post-prison supervision</a>. Cohen’s lawyer, David Schwartz, neglected to verify the cases before including them in his brief and, as it turned out, some of the cases were fake. The use of AI in legal research has judges and courts on alert, as the legal system grapples with governing, and in some cases banning, AI for such purposes.The U.S. Copyright Office <a href="https://www.govinfo.gov/content/pkg/FR-2024-01-03/pdf/2023-28724.pdf" target="_blank">plans to implement a “group registration option”</a> that would allow online publishers to register their news websites, most of which are updated frequently, as collective works with a deposit of identifying material, instead of the entire website. Typically, copyright registration requires the publisher to submit two complete copies of the “best edition of the work,” but this is often not practical for constantly changing online news sites.The LGBTQ+ dating app Grindr <a href="https://www.bloomberglaw.com/public/desktop/document/PlaintiffJOHNDOEvGRINDRINCetalDefendantsNo223CV02093ODWPDX2023BL4?doc_id=X310U1B0000N" target="_blank">avoided a lawsuit brought against it by an underaged user</a> who claimed that, due to a design defect, the app did not verify his age and connected him with four men who sexually abused him. U.S. District Judge Otis Wright in the Central District of California <a href="https://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2023cv02093/878953/45" target="_blank">dismissed the case</a>, holding that Section 230 barred the plaintiff’s claims. The court rejected the plaintiff’s invocation of the Ninth Circuit’s decision in <a href="https://www.sociallyawareblog.com/topics/ninth-circuits-snap-decision-limits-section-230-immunity" target="_blank">Lemmon v. Snap</a>, which held that Section 230 did not apply to negligent design claims that did not treat the defendant website as a “publisher or speaker” of “information provided by another information content provider.” Unlike in Lemmon, the court held, the plaintiff’s claims here were, in fact, based on Grindr’s publication of third-party content, namely geolocation data and user profiles. The court also rejected the plaintiff’s argument that <a href="https://www.sociallyawareblog.com/topics/ninth-circuit-interprets-fosta-restriction-on-section-230-narrowly" target="_blank">FOSTA’s sex trafficking exception to Section 230</a> should apply, noting that plaintiff did not allege that Grindr’s own conduct violated the underlying sex trafficking laws and that, even if Grindr “turned a blind eye” to sex trafficking on its app, as the plaintiff alleged, that was not sufficient to come within the FOSTA exception to the Section 230 safe harbor.The <a href="https://www.billboard.com/business/legal/no-ai-fraud-act-congress-federal-law-explained-1235578930/" target="_blank">No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act</a>, or No AI FRAUD Act, is a proposed bill from the House of Representatives that would create a new federal framework to regulate use of AI technology to clone people’s voices and likenesses. Introduced by Representatives María Elvira Salazar (R, Florida) and Madeleine Dean (D, Pennsylvania), the act intends to unify the current patchwork of state laws surrounding the right of publicity. According to Dean, “Not only does our bill protect artists and performers, but it gives all Americans the tools to protect their digital personas. By shielding individuals’ images and voices from manipulation, the No AI FRAUD Act prevents artificial intelligence from being used for harassment, bullying, or abuse.”In late December 2023, <a href="https://news.bloomberglaw.com/product/blaw/bloomberglawnews/exp/eyJpZCI6IjAwMDAwMThjLTg3YmMtZDRlMC1hM2NkLWVmYmRmNDM4MDAwMiIsImN0eHQiOiJURU5XIiwidXVpZCI6IitYYks1YlpPWFVhS0tkRXV4SXJHTmc9PTBWZzNSK2ViVW1seVVNSXJVR2JnRGc9PSIsInRpbWUiOiIxNzAzMjQ2MjgxMTEyIiwic2lnIjoiR1YrajZmcE82U2VIU3dtRjhjWXdjcTNwSTkwPSIsInYiOiIxIn0=?source=newsletter&item=headline&region=digest" target="_blank">several states considered enacting laws in 2024 that would curtail or restrict the use of AI in political campaigns</a>, echoing growing concerns about the new technology’s use in creating and disseminating misinformation about candidates and issues, often referred to as “deepfakes.” According to Bloomberg Law, “Deepfakes are images or videos of a person’s likeness or other related things that have been digitally altered in a bid to misrepresent what happened in reality.” These proposed bills would require disclosures if AI technology was used to generate image, video, or audio of candidates. <a href="https://www.citizen.org/article/tracker-legislation-on-deepfakes-in-elections/" target="_blank">Approximately 25 states </a>have introduced or passed legislation regarding AI in political campaigns.Google is implementing a Chrome browser feature <a href="https://www.mediapost.com/publications/article/392364/google-chromes-third-party-cookie-phaseout-forcin.html?utm_source=newsletter&utm_medium=email&utm_content=headline&utm_campaign=132869&hashid=Azad4XFYCcz6KIOGFqRTBpKIuPE" target="_blank">that cuts off websites’ access to third-party cookies. The initial implementation of the feature, referred to as Tracking Protection, rolled out to 1% of Chrome users </a>in early January. When activated, the feature blocks a website’s access to third-party cookies, which websites use to track user behavior and target them with ads and other marketing content.The new year also saw news organizations <a href="https://arstechnica.com/information-technology/2024/01/at-senate-ai-hearing-news-executives-fight-against-fair-use-claims-for-ai-training-data/">ask Congress for clarification that the use of copyrighted journalistic content to train generative AI large language models </a>is not fair use. Condé Nast CEO Roger Lynch commented, “if Congress could clarify that the use of our content for training and output of AI models is not fair use, then the free market will take care of the rest.” Senator Josh Hawley, one of the lawmakers who is considering introducing AI legislation, had this to offer: “If the AI companies—which are really just the big tech companies—if their reading of fair use prevails, fair use is going to be the exception that swallows the rule. . . . We’re not going to have any copyright law left.”

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Social Links: AI Continues to Make the Headlines in 2024