Bill Description: Senate Bill 1417 would impose new regulations and penalties on social media companies as defined by the bill.

Rating: -5

Senate Bill 1417 would create Chapter 21, Title 48, Idaho Code to define and regulate social media companies and platforms that operate in Idaho. The law would apply to "a commercial entity that provides a social media platform that has at least five million (5,000,000) account holders worldwide and is an interactive computer service."

Specifically, Section 48-2103, Idaho Code, which would be created by this bill, says, "A social media company may not permit an Idaho resident who is a minor to be an account holder on the social media company's social media platform without the express consent of a parent or guardian."

Of note, the language "may not permit an Idaho resident who is a minor to be an account holder" would apply to all existing users, not just new users. This would effectively require all regulated platforms to verify the age and location of every user already registered. Some social media platforms may already have access to this information. Others, though, may not, potentially requiring an unprecedented increase in the collection of personal data. 

This legislation would impose complex and costly requirements on social media platforms and even perhaps their users. But this is not its only flaw. The language about its implementation is unclear in several regards. How does the platform determine who is a minor? How does a minor prove he or she has "the express consent of a parent or guardian"? How does a platform verify the relationship? Can the consent be withdrawn after an account is created? What if one parent grants consent and another wants to remove it? None of these issues are addressed in the bill.

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Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

Senate Bill 1417 is discriminatory against certain types (and sizes) of online platforms. The regulations are applied to platforms having at least 5 million worldwide users. This is inherently arbitrary. Additionally, the bill explicitly exempts many types of electronic communications: e-mail systems, direct messaging, interactive and virtual gaming, professional creative networks, single-purpose community groups, platforms providing career development opportunities, shared document collaboration, comment sections of news websites, and many other interactive online platforms.

If a minor can agree to the terms and conditions required to participate in the exempted activities referenced above, there is very little justification for specifically targeting social media platforms for increased regulation. Modern social media platforms compete in the market with many of the exempted services. If the law makes it difficult for young people to access some platforms, it will push them to use unregulated competitors, unduly influencing millions of users' and potential users' market decisions. 

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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

Senate Bill 1417 includes two primary enforcement mechanisms, starting with a broad grant of power to the state attorney general. It says, "The attorney general shall receive consumer complaints alleging a violation of this chapter and may investigate such a complaint to determine whether a violation occurred."

The bill also says, "In any action brought by the attorney general wherein the state prevails, the court shall, in addition to the relief granted, award reasonable costs, investigative expenses and attorney's fees to the attorney general. Such costs and fees shall be remitted to the consumer protection fund created in section 48-606(5), Idaho Code."

In addition to being liable for these "costs and fees," a social media company "who violates an administrative or court order issued for a violation of this chapter is subject to a civil penalty of no more than five thousand dollars ($5,000) for each violation." The bill further allows that "a civil penalty authorized under this section may be imposed in any civil action brought by the attorney general."

The second enforcement mechanism in the bill is a private right of action. The bill says, "A person may bring an action under this section against a social media company to recover damages incurred after January 1, 2025, by an Idaho minor account holder for a social media company's violation" of this law. 

It also says, "If an Idaho minor account holder seeking recovery of damages under this section is under sixteen (16) years of age, there shall be a rebuttable presumption that the harm actually occurred."

This is a particularly dangerous provision because it presumes harm based solely on an allegation. Thousands of Idaho minors already have social media accounts. If a social media company fails to discover and expel all such account holders, it faces a presumption of inflicting harm. 

Should an allegation of harm be upheld by the court, the accuser would be entitled to "reasonable attorney fees and court costs"; either $2,500 for "each incident of harm" or "actual damages," whichever is greater; and "any other relief the court deems appropriate."

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Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

There are several constitutional objections to Senate Bill 1417. 

The bill limits freedom of contract. It says, "Notwithstanding any contract or choice-of-law provision in a contract, a purported waiver or limitation of any of the provisions of this section is void as unlawful and against public policy."

It further stipulates that "no court or arbitrator may enforce or give effect to any purported waiver of a protection or requirement provided under this chapter; the right to cooperate with the attorney general or to file a complaint with the attorney general; the right to a private right of action as provided under this chapter; or the right to recover actual damages, statutory damages, civil penalties, costs, or fees as allowed by this chapter."

Requiring a social media platform to comply with the bill will necessarily compromise a user's privacy and anonymity. Complying with the requirement that an Idaho resident who is a minor may not be an account holder without the express consent of a parent or guardian will require, at a minimum, the social media company to determine both the age and location of every person using the platform. 

This bill provides no exceptions for users who may use VPNs, privacy browsers, or other technical methods to obscure their location or identity. This creates a practical and technical problem for social media companies attempting to comply. Unless a company blocks all users from using such obfuscation techniques, it risks allowing an Idaho minor's account to go undetected. This would subject the platform to the investigations and lawsuits allowed under this law. 

The bill effectively restricts free speech. Social media platforms have become the digital equivalent of the town square, places where news is announced, politics and social issues are discussed, personal conversations occur, and trade is conducted. This bill would directly limit minors’ access to this space. It also would create, via reguilations, impediments to access by all users, because they will be forced to reveal their age and location to gain access to the platform. 

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Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

Senate Bill 1417 would require social media companies to abide by a host of undefined state and federal laws.

The bill says, "Notwithstanding any provision of this chapter, a social media company may not permit an Idaho resident who is a minor to hold or open an account on a social media platform if the minor is ineligible to hold or open an account under any other provision of state or federal law."

It is not the proper role of the state to mandate compliance with "any other provision" of undefined federal laws — including those that may not yet exist. 

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