Utah’s new, proposed social media laws were made public Monday, marking a change in the state’s attempt to regulate accounts belonging to minors.

For weeks, lawmakers have hinted at the changes to the social media laws, which flew through the legislature last year and were touted by Gov. Spencer Cox as a “first of their kind” approach to regulating social media.

But critics said the bills did not pass constitutional muster, including NetChoice, a trade association representing big tech companies that sued Utah in December, arguing the laws violate the First and 14th Amendments by restricting minors and adults from accessing online content.

Lawmakers said the changes rolled out on Monday will help the state’s legal argument.

“I can’t guarantee we’re not going to continue to be sued,” said one of the sponsors, Sen. Mike McKell, R-Spanish Fork. “But I think the bills put us in a better legal position moving forward.”

One of the biggest changes, according to McKell, is identifying what he called the “state’s compelling interest” — that social media is impacting sleeping patterns, academic performance and overall health for minors, while invading their privacy by collecting their data.

Rep. Jordan Teuscher, R-South Jordan said expanding the state’s definition of social media is another big change that will shield the state from certain legal arguments. The revised regulation targets companies that curate content using algorithms and use “engagement driven design elements” like endless scrolling, autoplay and push notifications.

“We’ve clearly identified the harms, we’re making it crystal clear why we’re doing it and it’s spelled out in the legislation. We’re taking a stand against big tech collecting of our data and harming our kids, and we’re putting them on notice,” said McKell.

Another big change, Teuscher said, is a safe harbor exemption for social media companies. As long as companies get consent from a parent or guardian before a child opens an account, remove certain features that promote excessive use, and impose time limits, they will be shielded from civil litigation.

If companies don’t adhere to those guidelines, “There’s a rebuttable presumption that you’ve caused, at least in part, those mental health issues and parents can sue,” which could result in a minimum $10,000 awarded in damages, and the cost of legal fees, Teuscher said.

But NetChoice on Monday said the regulations still run afoul of the Constitution.

“Unconstitutional laws help no one. Despite going back to the drawing board, Utah is still not on the right side of the Constitution. We look forward to a court hearing our case,” said Chris Marchese, litigation center director for NetChoice.

A spokesperson for Meta said the company was still reviewing the bills and did not have a statement to provide.

McKell’s bill would enact restrictions on minors using social media, while allowing parents or guardians to engage with with their children’s accounts by:

• Making tech companies use a “strict age verification process” for minor accounts.
• Disabling search engine indexing, where tech companies collect and store data to facilitate quicker search results.
• Making privacy settings that would limit direct messages, visibility and sharing features to the user’s “friends” to be enabled by default for minors. A parent or guardian can override these settings.
• Disabling features that lead to “excessive use” including autoplay, push notifications and “perpetual scrolling.”
• Preventing companies from collecting and selling data tied to minor accounts.

Social media companies would also be required to offer parents or guardians certain tools, like setting time limits and scheduling mandatory breaks while allowing them to see their children’s average and daily usage time and connected accounts.

McKell said the age verification will not require a government ID from all users, but social media companies will need to verify someone’s age with “95% accuracy.” How companies are expected to do that has yet to be determined, but McKell didn’t seem worried.

“There’s no question they’re going to figure this out,” he said.

The second bill, sponsored by Rep. Jordan Teuscher, R-South Jordan, focuses more on what lawmakers say are the “harmful addictive algorithms that social media companies deploy on children in Utah.”

HB464 would hold companies liable for any alleged harm that comes from social media use through a private right of action, which is when an individual or organization sues a company that violates the law. According to the bill text, a licensed mental health care provider would have to diagnose an “adverse mental health outcome”; a social media company would then have to prove to the court that their algorithmically curated content wasn’t the root cause.

Companies can “legally overcome the assumption” that their products cause harm if they:

• Obtain consent from a parent or guardian before their child opens an account.
• Removes the features mentioned in McKell’s bill that promote “excessive use” like autoplay, perpetual scrolling and push notifications.
• Display content chronologically.
• Impose time limits for accounts belonging to minors.

McKell’s bill allows for enforcement at the state level through the Utah Division of Consumer Protection, which could impose a fine of up to $2,500 for each violation. It will also allow the court to award damages.

On Monday, McKell said the new approach keeps some of the “core principles” of the previous laws while shielding the state from the constitutional concerns raised by the NetChoice lawsuit.

He pointed to several findings spelled out in the bill, including the claim that “addictive design features of certain social media services contribute to excessive use of a social media service by minors, impacting sleep patterns, academic performance, and overall health.”

The bill cites several studies to support these claims — including a study that found a link between time spent on social media and poor mental health among teens.

Although those studies don’t show a causational link, lawmakers still say these findings will still bolster the state’s argument.

“The amount of correlation is enough to meet the burden of causation under a legal threshold standard,” said Sen. Kirk Cullimore, R-Sandy.

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.

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