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In which we help to sue Ohio
On the heels of our announcement the other day that we're joining Netchoice as members to fight the wave of terrible and unconstitutional social media laws being passed across the country, I bring you: the first of those lawsuits we're participating in as Netchoice members! Filed on Friday, Netchoice, LLC v Yost is the lawsuit challenging Ohio's Parental Notification by Social Media Operators Act. This law (despite its name) applies to a wide range of websites other than social media sites, and it says that beginning January 15, 2024, people in Ohio under the age of 16 can't have an account on those websites without the website notifying their parent and confirming that their parent allows them to have an account.
This is obviously a problem for a lot of people under 16 in general -- there's any number of websites where a parent knowing that their child has an account there could endanger someone's safety -- but over and above all of those issues, this law has the same problem every single one of these "child protection" laws has: a website can't know which of our users are under 16 (and thus covered by this law) without knowing who all of our users are. This law, like many of the ones Netchoice is fighting, will require websites to identify and deanonymize all of their users in Ohio in order to know which of their users are subject to this law. More than that, it opens up a number of exploits and griefing tactics: if this law is allowed to go into effect, anyone would be able to have a site close the account of someone they dislike just by claiming that the person is under the age of 16, they're the user's parent, and they don't consent to the person having an account. This will work because there's no way for anyone to confirm whether Person A is Person B's parent, and the fines for failing to close an account when a parent tells you to are high enough that websites will err on the side of caution and just remove the account of anyone that someone claims is under 16.
There's a dozen other logistical issues with the law, many of which we got into in our declaration in support of the motion for an injunction saying that the law shouldn't go into effect. But ultimately, the biggest problem with the law is the same as every other law like it: we have a rich body of first amendment caselaw in this country saying that it's unconstitutional to place an undue burden on adult speech (or on access to others' speech) in the name of child protection, that anonymous speech is protected and it's unconstitutional to require identification or deanonymization in order to speak or to access speech, and that your constitutional right to access and engage in protected speech doesn't only begin when you turn 18. We're sympathetic to parents who are looking for tools to help guide their children into making good decisions for their online safety and privacy, but these laws aren't those tools, and the degree to which these laws interfere with the constitutional rights of adults make them something we absolutely will fight wherever they rear their ugly heads.
We're grateful to Netchoice for giving us the opportunity to stand up and explain to the court why this law is unconstitutional, and we're incredibly excited to continue to fight for your right to access the internet without scanning your ID or proving your identity and age. New with this news post: all future announcements of legal challenges we've contributed to will include a list of all the cases we've contributed to and a link to the docket for each of them, if you want to follow along. (Am I considering getting a scratch-off map of the US for my office wall so I can mark which states I've helped to sue over bullshit unconstitutional laws? Yes, yes I am.)
[EDIT 9 January 2024: The judge has issued the temporary restraining order and the law will not go into effect while Netchoice fights it in court! This is fabulous news! The hearing for the more permanent injunction will be February 7.]
Legal challenges we've contributed to:
* Netchoice, LLC v Bonta (5:22-cv-08861) N.D. California
* Netchoice, LLC v Yost (2:24-cv-00047) S.D. Ohio
This is obviously a problem for a lot of people under 16 in general -- there's any number of websites where a parent knowing that their child has an account there could endanger someone's safety -- but over and above all of those issues, this law has the same problem every single one of these "child protection" laws has: a website can't know which of our users are under 16 (and thus covered by this law) without knowing who all of our users are. This law, like many of the ones Netchoice is fighting, will require websites to identify and deanonymize all of their users in Ohio in order to know which of their users are subject to this law. More than that, it opens up a number of exploits and griefing tactics: if this law is allowed to go into effect, anyone would be able to have a site close the account of someone they dislike just by claiming that the person is under the age of 16, they're the user's parent, and they don't consent to the person having an account. This will work because there's no way for anyone to confirm whether Person A is Person B's parent, and the fines for failing to close an account when a parent tells you to are high enough that websites will err on the side of caution and just remove the account of anyone that someone claims is under 16.
There's a dozen other logistical issues with the law, many of which we got into in our declaration in support of the motion for an injunction saying that the law shouldn't go into effect. But ultimately, the biggest problem with the law is the same as every other law like it: we have a rich body of first amendment caselaw in this country saying that it's unconstitutional to place an undue burden on adult speech (or on access to others' speech) in the name of child protection, that anonymous speech is protected and it's unconstitutional to require identification or deanonymization in order to speak or to access speech, and that your constitutional right to access and engage in protected speech doesn't only begin when you turn 18. We're sympathetic to parents who are looking for tools to help guide their children into making good decisions for their online safety and privacy, but these laws aren't those tools, and the degree to which these laws interfere with the constitutional rights of adults make them something we absolutely will fight wherever they rear their ugly heads.
We're grateful to Netchoice for giving us the opportunity to stand up and explain to the court why this law is unconstitutional, and we're incredibly excited to continue to fight for your right to access the internet without scanning your ID or proving your identity and age. New with this news post: all future announcements of legal challenges we've contributed to will include a list of all the cases we've contributed to and a link to the docket for each of them, if you want to follow along. (Am I considering getting a scratch-off map of the US for my office wall so I can mark which states I've helped to sue over bullshit unconstitutional laws? Yes, yes I am.)
[EDIT 9 January 2024: The judge has issued the temporary restraining order and the law will not go into effect while Netchoice fights it in court! This is fabulous news! The hearing for the more permanent injunction will be February 7.]
Legal challenges we've contributed to:
* Netchoice, LLC v Bonta (5:22-cv-08861) N.D. California
* Netchoice, LLC v Yost (2:24-cv-00047) S.D. Ohio
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