What is California’s “Erase” Law for Minors on Social Media

Editor’s Note: The following is a guest post by the fabulous Judith Delaney, and attorney who specializes in New Media Compliance Solutions Strategies.

It should be no surprise to anyone that kids are well, kids. They act silly, they say silly things, and use their imaginations to dream up some of the strangest and even scary scenarios.

Before the age of digital media we now live in, their silly acts, their silly sayings and their strange and scary scenarios were played out to an audience that was, for the most part, made up of their family; and their stage was the comfort of the family home. This was the family who, with tolerance, watched and taught their kids the difference between a funny silly and a not so funny silly. And the kids learned to distinguish between the differences.

Now, with or without Mom and/or Dad’s permission, kids under the age of 18 either have access to, or an actual account on Facebook or Twitter or Instagram or whatever social media site they want.

They are still kids. But their audience and the stage have changed. It is now the world. Their silly acts, their silly sayings and their strange and scary scenarios are played out in an instant to this new audience and stage.

The world is not as tolerant as the family. It does not have the patience or caring to teach the difference between a funny silly and a not so funny silly. As a result, what kids post online can often get them into trouble. It sometimes harms their chances of getting into college and can even land them in jail.

For example, this past February, a Texas teenager by the name of Justin Carter took to Facebook to threaten a school shooting. His family audience insisted he was being sarcastic while playing a video game, while his world audience thought differently and he spent six months in a Texas jail on a felony terrorism charge. He is now 19, out of jail on bond, awaiting trial.

How can we protect minors from themselves?

What to do to protect a minor from compromising his/her future as a result of his/her own inappropriate material posted online has been an ongoing debate in state legislatures across the United States.

California is often the leader when it comes to strengthening privacy protections for all of its citizens. And these citizens include minors.

So, in September 2013, Governor Jerry Brown signed into law an amendment to California’s Online Privacy Protection Act, known as AB 370, as the first measure in the United States to give minors under the age of 18 the legal right to ‘erase” information they post to websites. This law will go into full effect in January 2015.

This right to delete, or “erase” by minors was part of a broader “do not track transparency” bill (SB568) and amends the California’s Privacy Protection Act.

Requirements of this Californian “erase” law

• Operators of websites and mobile apps directed towards minors under 18 years of age in California, are required to delete “rants, tweets, pictures, status updates and other [inappropriate] material” that the minor living in California posts on websites as a registered user;
• Websites are required to clearly inform minors on how to remove publicly posted information;
• Websites that are specifically directed to minors under the age of 18, and general interest websites where the operator has actual knowledge that the user is under 18 years old, are prohibited from marketing and advertising certain products that are illegal for children to purchase (including alcohol, tobacco, firearms, tanning beds and tattoos), on a minor’s social media page; and
• Websites and apps are prohibited from sharing children’s personal information with third parties that intend to market these products to minors. These third parties would include the dozens or even hundreds of ad networks like TribalFusion, Facebook’s FBX and Goodle’s AdSense that inconspicuously track activity across a vast array of sites.

There is no question that, for advocates wanting more laws to protect children’s privacy, this law can be viewed as an important first step with the hope that, short of a federal privacy law, other states will follow California’s lead.

BUT

Before you or your kids and teenagers (who are really just kids) get too excited about the “erase button”, following is what the law DOES NOT REQUIRE:

• It does not require or compel websites to remove content that is posted or re-posted by third parties before the author has requested it be “erased”. In other words, companies are only required to respond to “erase” requests from the person who first posted the information. So, if a Facebook user posts or re-posts an embarrassing image or message about their friend, Facebook is not required to enforce a request from the friend to “erase” it.
• It does not require websites to permanently erase the inappropriate content from a company’s internal computer systems, inclusive of their servers – only from the website(s) itself.
• Websites are not liable if an image or content is copied or reproduced on or to other sites or elsewhere before it is “erased” or removed.  This means, for example, that if your kid or teenager posts an inappropriate picture that has gone viral, it cannot be purged from the Internet. 

AND

Remember, this law only applies to websites operating in the State of California.  But the Internet is stateless and its home and stage is the world.

It would seem, therefore, that it is still important for kids, including teenagers, to learn the difference between a funny silly and a not so funny silly.

The question then becomes – who will be the teacher – family and home or the law?

Disclaimer: Disclaimer:  The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter thereof.  Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship.   The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or all of the content of this article.