California Decides It Rules the Interwebz

Kids do dopey things, and what better place to do them than on the internet! Whether it’s some embarrassing nonsense of their really fun Friday night on their Facebook wall or a photo of them engaged in semi-naked, alcohol-fueled conduct that a future employer might find questionable, it all ends online. Welcome to the virtual world of digital natives.

So who, except the most heartless cretin, would deny an immature youth the opportunity for a Mulligan, a do-over, to clean up all the stupid crap he posted as a child so that it doesn’t follow him around for the rest of his life?  An “eraser” of youthful foolishness, if you will.

California, apparently, likes the idea a lot.  So much so that it passed a law.  From Bradley Shear’s Social Media Law:

Gov. Brown signed into SB-568 Privacy: Internet: Minors that will protect the online privacy of those under  18 years of age who reside in the State of California.  According to CA Senate President Pro Tem Darrell Steinberg, the bill’s sponsor, the legislation “requires all web sites, social media sites and apps to allow anyone under 18 to remove content they posted earlier.”

[T]he new law requires operators of digital platforms to notify minors of  their rights to remove content or information they posted and honor their requests to remove such data, subject to specified  conditions and exceptions.

Cool, right? Well, maybe not exactly.  It creates a great many issues and problems that may not appear at first blush.  The first, and most overarching, issue is who made California the ruler of the web? The internet knows no jurisdiction, but that didn’t stop California from deciding that it was large and in charge.  Does the California legislature get to pass laws telling New York websites what they can and can’t do?

And then the corollary, which is that if California can start passing laws regulating the internet, so too can every other jurisdiction. There is nothing to stop a state from enacting a law requiring websites to meet the sensibilities of Kentuckians, or Alaskans, or Russians for that matter.  Of course, while websites hosted within the jurisdiction would be easily enough reached should they violate the law, how exactly does California plan to enforce its control of the tubes?

Come get me, California.

It looks like Bradley is a strong advocate of the law, according to his quote at ABC News:

Bradley Shear, a lawyer who specializes in Internet privacy and social media, views California’s new law as a milestone for an individual’s right to privacy, though more from a legal point of view than a philosophical one. “A minor with a juvenile record can petition the courts to have it expunged when he turns 18,” he said. “This new law is akin to what’s already out there in traditional law.”

The law may only apply to Californians, but that doesn’t mean companies based outside of the state can ignore the rules. “If your website is accessible by any California resident, then you need to ensure that it’s abiding by the new law,” Shear said.

If? Do the tubes stop at the California border? Not that I’m aware of.  Like Bradley, the concept behind the law is something that I can support, as I agree that the errors of a wayward youth shouldn’t taint a person forever.  But to make this a law by California fiat is a whole ‘nother story.

It’s unclear how California could possibly enforce this law against anyone outside its jurisdiction, though it’s not entirely out of the question that it can embrace people from far away whose websites “miraculously” appear on California computers under their own long-arm jurisdiction, take action in local courts, and then seek to enforce it under the full faith and credit clause of the Constitution.  There are a host of problems with this, not the least of which is its interference with interstate commerce, and there remains no enforcement mechanism in the law, whether civil or criminal, as far as it appears.

But this breaches a dangerous wall, even if for a good cause. If California can do it, so can New Jersey.  If it subjects websites to a foreign state’s good law, they will eventually be subject to another state’s ridiculous law.  And websites may well end up subject to state laws that impose directly conflicting requirements. And the enforcement may not be through civil damages, but may end up with criminal sanctions.

The possibilities are endless and bleak, and the fact that it starts with a benign, if not admirable, concept in California doesn’t change the fact that it opens the door to the nightmare scenario of every local yokel legislator trying to fix what he hates about the interwebz.

It surprises me that Bradley has gotten behind this, as it is a disaster waiting to happen.  And it surprises me that he appears to recognize the widespread potential for some really awful law and yet doesn’t decry the effort of one state to regulate the internet while applauding the particular “eraser law” at hand.

Somehow, it strikes me that the interwebz aren’t going to pay a whole lot of attention to Cali’s enactment of this law, or change their ways because an important public official says so.  While websites may well decide that this is just an excellent idea, and adopt it because it deserves to be adopted, it will be fascinating to see if California tries to compel a website to comply with this law.  I don’t see the interwebz taking kindly to it.

13 comments on “California Decides It Rules the Interwebz

  1. doug

    But, Hollywood is the giver of our culture and its in California, so they should rule. Its so self evident (to them).

  2. Ultraviolet admin

    It does help that Facebook, Instagram, Yahoo/Tumblr, and Google/Youtube are all based in the same part of California, which you agree to jurisdiction in via their terms and conditions.

    OTOH, that helps show off how crazy it is, the internet doesn’t go well with current jurisdictional theories. Besides, shouldn’t COPPA, COPA, and the CDA override these state laws? Ugh and doesn’t this at some point become a quasi in rem jurisdictional theory, your tubes go to Cali, so we get to reach back over them?

    1. SHG Post author

      New tech, new concept of jurisdiction? This doesn’t really affect the big boys, as they already allow deletion, even if it doesn’t stop the cache or wayback machine from having it forever, but imagine the little guys being dragged into the jurisdiction. Ouch.

  3. David

    ICANN, which in some sense IS the internet, or at least its headquarters, has its own HQ in California. So a terrible, terrible argument could be made that California does have some sort of control, while no one else does. I wish to reiterate that this is a terrible argument.

  4. Henry Bowman

    But isn’t this exactly the legal theory used 15 or 20 years ago, when prosecutors were taking down porn sites by finding “victims” who viewed them from Armpit, Arkansas or God’s Wrath, Mississippi? Did the sites find a way to evade this harassment, or did they benefit from some new federal law? If the latter, would the same law be applicable to this issue?

      1. Ultraviolet admin

        I remember reading those cases, yeah they used that theory based on long arm statues that there was an effect in there state. The CDA’s immunity to providers shut down these attempts unless they also broke federal laws.

  5. Pingback: Facebook To Maryland Teachers: Whatever You Say | Simple Justice

  6. Pingback: October 7 roundup - Overlawyered

Comments are closed.