Colorado’s rejection of Senate Bill 24-158 is good for privacy, free speech

Colorado narrowly escaped a potentially significant upheaval in its social media landscape when state legislators recently rejected Senate Bill 24-158. The proposal contained controversial provisions for social media platforms on age verification, data privacy, content moderation, and advertising restrictions, which could have had far-reaching implications for Coloradans and social media.

While Senate Bill 24-158 failed, for future regulations and proposals, it is worth examining what the bill would’ve done. The proposal tried to be an all-encompassing social media regulation bill, but it would’ve clumsily plunged the state government into complex territory.

The bill’s age verification clause would have required individual users to upload their sensitive, private information, such as government identification, Social Security numbers, or face scans to access certain websites and social media platforms. Such regulation would have threatened Coloradans’ First Amendment rights to privacy and freedom of speech.

Free speech organizations have been sounding the alarm on proposals like this for some time, and some courts have already ruled that similarly broad age verification mandates in other states are unconstitutional. 

The Colorado bill’s age verification clause, while well-intentioned, would have inadvertently encouraged minors to engage in risky online behavior. By incentivizing the use of dangerous third-party software like fake ID websites, the bill would have undermined its objective of protecting minors online. 

The bill would’ve also required social media companies to retain user activity data for one year. This demand runs counter to the concept of data minimization, a cybersecurity practice many media companies use to limit the amount of data they retain on users. If a cybersecurity breach occurred, the law would have potentially exacerbated the event’s impact by giving hackers access to more information since the law would’ve required companies to store more data for longer periods. 

Colorado Senate Bill 24-158’s definition of social media would have captured many sites that aren’t traditionally considered social media. Its definition included tools like fitness apps that allow users to have profiles and share data, news websites where readers can create profiles and comment, and many others. The expensive requirements of age verification would punish these smaller apps and sites, which probably never considered themselves social media. The bill would’ve rewarded the larger companies in the industry, which can more easily afford to deal with timely and expensive compliance regulations.

If a bill similar to SB 24-158 ever does pass, the burden of compliance costs would likely thin out the market and limit options for Coloradans. 

Another negative element of the bill was its sloppy approach to so-called illicit substances that would have required social media companies to censor any content containing these items and permanently ban the accounts of businesses that attempt to advertise these products. The advertising ban would have applied to substances that are illegal but would have also forbidden advertising of certain substances that are fully legal under state or even federal law, such as hemp-derived cannabinoids or state-legal psychedelic therapies. SB 24-158 would have also required social media companies to censor content that includes any of these items or any legal firearm. 

Senate Bill 24-158 tried to tackle several complicated issues at once but failed to adequately address any issue, so its defeat was a definite win for the people of Colorado. The bill’s unwise approach to data privacy faced known constitutional and enforcement issues and would’ve contributed to a growing patchwork of state data privacy laws. The bill’s treatment of illicit substances would have unnecessarily restricted speech in advertising, raising First Amendment concerns.

While there are legitimate concerns about some aspects of social media, such as content moderation for different age groups, the next time they examine this issue, Colorado lawmakers would fare better focusing on research and education rather than actively trying to over-regulate. Free markets and competition will create emergent solutions, like parental controls, to ease many customer complaints and concerns.

In the meantime, Colorado should avoid implementing a constitutionally questionable age verification scheme which would burden far more users and websites than state policymakers realize and comes with significant unintended consequences. For now, the defeat of Colorado Senate Bill 24-158 was a win for consumers, privacy and free speech.

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