By Thomas R. Burke, Deborah A. Adler, Ambika K. Doran, and Tom Wyrwich
On Jan. 1, 2015, California’s “Online Eraser” law will take effect, requiring websites and other online service operators to delete on demand any content posted by minors. The law also prohibits such operators from sharing minors’ personal information with third parties for the purpose of marketing particular products or services to them. The new law, however, is ambiguous and possibly unconstitutional.
Law Will Require Websites to “Erase” Content Posted by Minors
California S.B. 568 mandates that operators of websites, online services, and online and mobile applications permit minors who are registered users to remove (or request and obtain removal of) content they have posted on the operator’s website. It also requires operators to provide notice of the right to remove, and instructions for exercising it. The law does not apply to third parties that operate, host, or manage online services on behalf of others.
The law does not apply if: (1) another law requires the operator to maintain the content; (2) a third party—not the minor—posted the material; (3) the material was posted anonymously, or the operator anonymizes the material so that the minor cannot be individually identified; (4) the minor failed to follow posted instructions to obtain the removal of content; or (5) the minor received compensation “or other consideration” for providing the content. To comply with a request for removal, an operator need only make the user’s posted material invisible to the public; it need not delete all content from its servers or delete material copied and posted by third parties.
The statute also requires operators to take “reasonable actions in good faith” to not publish online advertisements for 19 categories of products and services, ranging from alcohol to spray paint, on websites that are directed to minors or if the website operator has actual knowledge that the website visitor is a minor and the advertisement is specifically directed to them. In addition, the new law prohibits operators from disclosing minors’ personal information to third parties with actual knowledge that it will be used to advertise or market those prohibited items.
California S.B. 568, which will soon be Chapter 22.1 of the California Business and Professions Code, does not itself provide a private right of action. However, any affected minor could try to bring a civil action under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which allows for injunctive relief and civil penalties of up to $2,500 per violation.
Ambiguities in the Law
As the bill’s effective date nears, significant questions remain as to key provisions.
First, the law is unclear as to which operators must comply with the new regulations. The restrictions are intended to apply to two kinds of operators: (1) those with actual knowledge that a user is a minor, and (2) those whose forums are directed to minors. The bill does not define “actual knowledge,” and it expressly states that operators are not required to collect age information about their users. Nor is it clear what it means for a forum to be “directed to minors.” The law defines such a forum, or portion thereof, as one “created for the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults.” Although the federal Children’s Online Privacy Protection Act (“COPPA”), 15 U.S.C. §§ 6501–6506, and the FTC’s COPPA Rule, 16 C.F.R. Part 312, regulate children’s privacy and have led to some guidance on when websites are “directed to minors” (as well as on the ways “actual knowledge” of a minor’s status is obtained outside of collecting date-of-birth), COPPA and the FTC’s rules apply only to minors under 13. This necessarily leaves courts with little guidance whether a forum is directed to teenagers rather than adults.
Second, the law is ambiguous as to when a person can procure removal of material posted when he or she was a minor. On its face, the statute only allows “a minor” to do so—meaning that a minor must request removal before turning 18.
Constitutional Challenges Ahead
The law will almost certainly face significant legal challenges as potentially violating the dormant Commerce Clause and the First Amendment. It is also inconsistent with federal statutes, including the Communications Decency Act of 1996, 47 U.S.C. § 230, which provides significant protection from state-law claims for hosting third-party content.
Perhaps most concerning are the law’s First Amendment implications. As written, the bill requires operators to delete information, even if it is newsworthy or if other users have commented on it or otherwise interacted with it (e.g., “liked,” shared, or retweeted the content). In contrast, newspapers or magazines can publish a minor’s comment without obtaining the minor’s permission. The law is also likely to face a challenge that it is not narrowly tailored to serve a compelling government interest.
The Center for Democracy and Technology, an organization devoted to Internet free speech, has already opposed the law because “legal uncertainty for website operators will discourage them from developing content and services tailored to younger users, and will lead popular sites and services that may appeal to minors to prohibit minors from using their services.” Ultimately, the Center concluded, the bill may lead to “reducing minors’ access to information and platforms for expression online.” California Senate Rules Committee, Senate Floor Analyses, S.B. 568, at 9 (Aug. 29, 2013).
Regardless of whether the law is ultimately declared unconstitutional, it takes effect in 2015, meaning, any operator of a forum used by minors should closely examine whether it applies to them—and if so, take any feasible steps to comply with the law.
 A full copy of the bill is available on the California Legislature’s website. See http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568