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from the tiktok-is-free… dept
This is so bizarre. Last month, we highlighted the ridiculousness of Arkansas’ age verification for social media bill. These bills are showing up everywhere, from California to Utah and lots of other places as well. It’s bipartisan nonsense.
It’s pretty clear that these bills are unconstitutional: they seek to suppress the free speech rights of children, first of all, but also they create an untenable situations in which websites are forced to collect much more, and much more intrusive, data on everyone. I’ve seen some people say that it’s only collecting that data on children, but that’s wrong. Sites need to collect the data on everyone or how else do they know who is and who is not a child.
In other words, these bills, that are often presented as being “privacy” bills, are actually privacy nightmares.
Still, Arkansas’ bill went from bad to ridiculous last week as it passed out of the legislature and landed on Governor Sarah Huckabee Sanders desk, where she promised to sign it.
The supporters of the bill seem to believe complete and utter nonsense, and have no comprehension of the actual threats and risk of the internet:
Local parents Brett and Kara, who opted not to provide their last names, think the Social Media Safety Act is a great idea.
“They try to meet up with younger kids, and that’s one of the main problems for me,” said Brett.
“Kidnapping, pedophiles, luring kids out,” added Kara.
Again, this almost never happens. The risk of it happening to your kid is effectively nil.
But, the really hilarious part of the bill is that right before it passed, for reasons unexplained, the Arkansas legislators added in a bunch of exemptions, that basically means the bill seems to… only apply to Meta’s Facebook and Instagram. Yes, it appears that TikTok, YouTube, Twitch, LinkedIn and others are exempted. Oh yeah, also Truth Social, Parler, Gab and the like, who don’t qualify, since social media sites have to make $100 million in annual gross revenue to qualify.
The exclusions of other companies is so blatant as to be almost hilarious. First, the bill defines a “social media company” to be an online forum where people can “create a public profile,” “upload or create posts or content,” “view posts or content of other account holders” and “interact with other account holders.”
Okay, that should cover most… but then it immediately jumps into exemptions, noting that:
(B) “Social media company” does not include a:
(i) Media company that exclusively offers subscription content in which users follow or subscribe unilaterally and whose platforms’ primary purpose is not social interaction;
(ii) Social media company that allows a user to generate short video clips of dancing, voice overs, or other acts of entertainment in which the primary purpose is not educational or informative, does not meet the exclusion under subdivision (7)(B)(i) of this section;
(iii) Media company that exclusively offers interacting gaming, virtual gaming, or an online service, that allows the creation and uploading of content for the purpose of interacting gaming, entertainment, or associated entertainment, and the communication related to that content;
(iv) Company that:
(a) Offers cloud storage services, enterprise cybersecurity services, educational devices, or enterprise collaboration tools for kindergarten through grade twelve (K-12) schools; and
(b) Derives less than twenty-five percent (25%) of the company’s revenue from operating a social media platform, including games and advertising; or
(v) Company that provides career development 16 opportunities, including professional networking, job skills, learning 17 certifications, and job posting and application services;
Let’s go through these one by one. The first exemption is pretty clear. It’s a company that is serving up subscription content. That’s to exempt Netflix and Disney. At least they didn’t go with a theme park exemption a la Florida.
The second exemption is the funniest by far. First of all, it’s terribly drafted, because technically it reads that a “social media company does not include a social media company…” but more to the point, it seems explicitly drafted to exclude… TikTok? The site that everyone’s trying to ban and that is often held up as the problem? But, then the end of the sentence makes it confusing, because it then refers back to the subscription content in the clause above it.
But, honestly, deliberately highlighting that a site that “generates short video clips of dancing, voice overs, or other acts of entertainment” is basically “hey, this is TikTok.” So, it looks like TikTok isn’t banned, unless the drafting is so ridiculously bad that this is something of a double negative, and the intent of the language is that even though this is listed as an exemption, it’s the opposite of an exemption because it is paradoxically referencing the term above it? Honestly, it’s incomprehensible. But if it carves out TikTok, it seems likely that it might also carve out SnapChat here.
The third exemption seems to be explicitly carving out Twitch from the bill.
The fourth exemption is a bit tricky… but which many are arguing carves Google/YouTube out of the bill, because Google does offer all of the things in (iv)(a) and also derives less than 25% of its revenue from YouTube, its only real social media platform, which hits the qualification for (iv)(b).
The fifth exemption then carves out LinkedIn.
Bizarrely, after this, the bill separately defines “social media platform” (as opposed to social media “company”) even though the bill seems to use the two terms interchangeably elsewhere. And the definition of a social media platform has more carve outs, for messaging and email services, for streaming video services (in case the other Disney carveout wasn’t enough), for news and sports sites where it’s more broadcast than user-generated, and for shopping sites. They also carve out services that provide comments to websites, that provide cloud storage, shared document collaboration, and academic services.
Basically, one by one by one, the bill is all exclusions of more or less every single possible social media platform… except Facebook, Instagram and (I guess?) Twitter. Elon’s gonna love that.
Even the usual crew you’d think would be dumb enough to support this are concerned:
Yeah, Junior, they also carve out your Dad’s site too, so be happy about that.
Of course, the whole thing is a complete joke, from the concept, to the drafting, to the overall execution. But the fact that nearly half of the text of the bill is literally trying to carve out this or that social media platform would be funny if it wasn’t so stupid.
Filed Under: age verification, arkansas, carve outs, exemptions, sarah huckabee sanders
Companies: facebook, google, instagram, linkedin, meta, tiktok, twitter, youtube
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