May 30, 2023

Dear Senators,

My name is Steven Greenhut. I am a senior fellow and Western region director at the RStreet Institute, a free-market think tank that supports limited, effective government in many areas, including tech-related and social-media policy. We believe that an open internet, free from unnecessary government regulation, is the best way to promote the widest-possible discourse and remain in concert with the principles of the First Amendment.

I am writing to oppose Senate Bill 287, which “subjects social media platforms to civil liability for damages” caused by their practices, algorithms and features that could lead minors to purchase illegal substances or guns, commit suicide, develop an eating disorder, become addicted to a social-media platform or inflict harm on themselves or others. This broad terminology will lead to an unending sea of litigation. It will stifle internet innovation and development while offering no real protection for minors.

All of us share the author’s concerns about the potential connection between social-media usage and various mental-health, behavioral and addiction problems among minors, but the legislation is so open-ended it leaves tech companies subject to liability for any “feature that the platform knows, or which by the exercise of reasonable care should have known” would cause harm. It’s nearly impossible to measure that harm. The bill ultimately restricts speech and will run afoul of the U.S. Constitution’s protections.

One could argue that the very nature of social media could lead to those ill effects – just as protected First Amendment speech could likewise encourage people to engage in harmful behaviors. There is no way to legislatively protect people from potential harms of free speech without causing innumerable problems, although private arrangements and technologies that empower parents to control what their children read and view offer much promise.

The legislation sounds reasonable in that it attempts to stop companies from knowingly offering problematic algorithms and features, but its lack of specific definitions makes it impossible for tech businesses to know exactly how to comply. For instance, the legislation refers to “addiction to the social media platform,” but doesn’t offer a precise way of knowing what that means. The psychology of addiction is complex – and doesn’t offer an easy diagnosis when we venture outside of the use of dangerous drugs and substances into the world of “overuse” of a generally beneficial technology.

Frankly, virtually all Americans could be suffering from a social-media addiction, as most of us routinely check our cellphones and social-media sites. This stems from the nature of the applications, which reward people for publishing and liking various posts. It’s unclear how to measure the degree to which a social-media site might lead to a child’s development of, say, an eating disorder. Such diagnoses are complicated and include many factors, so it’s an act of hubris to suggest that one can easily pin such problems on any particular algorithm.

I appreciate that the legislation gives social-media platforms 30 days after an audit to correct any potential violations of SB 287 before facing a lawsuit, but that doesn’t provide them with much protection given the broad and nebulous concepts described in the measure. The required audit also lacks the specificity and detailed guidance that businesses would need.

“The lived experiences of children, teens and adults differ immensely, and businesses do not have a roadmap to users’ lived experiences, and what could potentially cause them harm,” noted the Computer & Communications Industry Association in its opposition to the bill. It offered the example of the potential emotional harm that serious news coverage of the war in Ukraine could cause to young people. Posting war-related videos is a judgment call, but under the bill’s standards, such calls will become subject to court review.

As a result, the industry group continued, tech companies would simply be encouraged to ban minors from accessing many of their services – thus limiting their access to legitimate news and useful information as well. Here’s another hypothetical situation: How could a tech company be sure that opinions it allows regarding, say, the value of gun ownership or the benefits of marijuana use doesn’t encourage a minor to illegally purchase a handgun or cannabis?

There’s no avoiding the obvious conclusion that SB 287 serves as a regulation of speech. “The bill is straightforward in its recognition that social platforms are speech platforms and that the listed harms, including self-harm and addiction, could only occur from receiving or viewing content, i.e., speech,” according to opponents quoted in the Senate Judiciary Committee analysis.

Because of its speech-based nature, the bill would subject the state to long and costly litigation. The Judiciary Committee analysis agrees that, “Ultimately, it is likely the bill will face legal challenge.” The most relevant U.S. Supreme Court case, it cited, is Gonzalez v. Google, in which the family of a victim of an ISIS attack sought to hold Google liable because it gave a platform to that radical Islamic group.

The court decided this month that the case could not proceed – and did so on a 9-0 decision.

That decision – and the court’s sidestepping of the broader issue of Section 230, which continues to offer liability protections to social-media companies for the posts that individuals share – should offer California lawmakers a preview of how such efforts likely will go.

California prides itself on the way that its “first in the nation” laws prod other states and the federal government to follow suit. Does our state really want to lead the way in undermining Internet speech – and in placing the government in the position of policing such speech as a means to protect us?

There’s no easy legislative fix for what amounts to a broad, societal problem that’s rooted in the nature of free speech itself. Like all such problems, the best answers lie in voluntary policies enforced by social-media companies and in parental involvement in their children’s lives. Therefore, I respectfully urge a “no” vote on Senate Bill 287.

Best regards,

Steven Greenhut
Western Region Director
R Street Institute
sgreenhut@rstreet.org

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