SB 568: Taking an eraser to childish behavior

Since children don't always make the best decisions, California has adopted Senate Bill 568, which seeks to limit online advertisements available to children and provide an "eraser button" for the regrettable posts they publish online. Couched as "privacy rights for Californian minors in the digital world," SB 568 is well-intentioned, but it's not a viable solution to the inevitable poor decisions children will make on the Internet.

First, the law prohibits Internet marketing or advertising to minors of products or services that minors cannot legally purchase, such as guns, alcohol and pornography. Second, the law prohibits the operator, personally or through a third party, from using, disclosing or compiling the personal information of a minor for purposes of marketing goods or services the minor cannot legally purchase. Since a user's age is inherently difficult to determine on the Internet, these provisions are critically flawed. If a minor finds him or herself on a website not specifically "directed" to minors, or if that minor has not provided his or her age, the regulations are toothless.

The more controversial aspect of the law, however, is the "eraser button," which requires the operator of a website or application to permit a minor to remove content or information posted by the minor, and to inform minors of this ability. As Internet searches by employers, recruiters and college admissions officers become more commonplace, SB 568 recognizes that Internet posts may follow a young person for life and dramatically impact their futures.

Unfortunately, the ability to remove a potentially harmful post does not solve these problems, and may even raise new ones. For instance, the removal of a single post in no way ensures the comprehensive removal of information from the Internet. The law only requires a removal option for information that the minor himself has posted. The "viral" nature of information on the Internet is completely removed from the parameters of SB 568. The law provides no remedy if the information is cached by another site, copied to another page or re-posted by a third party. If a minor's post is copied by a Facebook friend or re-tweeted by another user, the law is essentially impotent.

Paradoxically, SB 568 may actually increase the instances of regrettable posts minors make. The concept of an Internet "erase button" may embolden an otherwise reticent minor to post information, with the understanding that such posts are temporary and may be removed with a simple request. The law may thus promote a lack of accountability on the Internet which minors will rely on too handily.

The law also has a staggering reach. While SB 568 asserts an interest in protecting California minors, it seeks to regulate virtually all existing Internet website operators to accomplish its goal. To require all website operators to allow minors to retract posts upon demand raises inevitable questions of compliance and enforcement. An out of state website operator, for instance, is now required to conform its user interface if a California minor is a registered user. The law thus raises the specter of a patchwork of conflicting state and federal laws that seems unrealistic to implement.

Since its inception, the Internet has repeatedly proven to be a unique creature that laws struggle to tame. SB 568 is no exception. While the state has identified several key problems, SB 568 presents a somewhat unworkable solution with too many substantial flaws to accomplish its lofty goals.