Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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Authored by: <a href="mailto:cshih@bakerlaw.com">Charles K. Shih</a> California became the first state to sign into law a bill that requires websites and apps to provide an &ldquo;eraser button&rdquo; to its users under the age of 18.&nbsp; The law, S.B. 568 signed by California Governor Jerry Brown, has two main elements.&nbsp; First, it requires Internet companies to provide an easy to use method for a minor to delete a posting or picture before it is transmitted to a third party.&nbsp; The purpose is to allow minors to remove any embarrassing information that they regret posting later.&nbsp; The second provision prohibits Internet companies from marketing products to minors that are otherwise prohibited from being offered and sold to minors &ndash; i.e. alcohol, tobacco, and guns.&nbsp; The California law has drawn comparisons to the federal Children&rsquo;s Online Privacy Protection Act (&ldquo;COPPA&rdquo;) and the European Union&rsquo;s proposed expansive new privacy right &ndash; the &ldquo;right to be forgotten.&rdquo;&nbsp; Briefly, COPPA regulates a list of personal information that cannot be collected without parental notice and consent, which includes geo-location information, photos, videos and audio files that contain a child&rsquo;s image or voice.&nbsp; For additional information on the new COPPA requirements, see the post by Benjamin Pergament <a href="https://www.dataprivacymonitor.com/coppa/new-coppa-requirements-for-mobile-apps-and-websites-now-in-effect/">here</a>.&nbsp; Unlike COPPA, which regulates a website&rsquo;s collection of information from children under the age of 13, the California law applies to teens between the ages of 13 and 18 as well.&nbsp; Additionally, in comparison to the EU&rsquo;s &ldquo;right to be forgotten,&rdquo; the law only applies to information and photographs that the individual posts themselves and does not extend to information that a third party either posts or reposts regarding the teen &ndash; a provision that is included in the EU&rsquo;s &ldquo;right to be forgotten&rdquo; that has drawn considerable debate in the online community.&nbsp; Supporters of the bill hope that either other states will follow California&rsquo;s initiative or Congress may take the bill&rsquo;s passage as a sign to enact federal laws with the same effect.&nbsp; The law is meant to protect teens from embarrassment and harm to job and college applications where the potential employers or admissions officers use the internet as an additional background check.&nbsp; A 2012 Kaplan survey of college admissions counselors indicated that nearly a quarter of colleges searched applicants online and factored the results from the applicant&rsquo;s social networking sites into their decision-making.&nbsp; Opponents of the bill argue that the new California law will force websites to enact different policies for different states.&nbsp; Opponents also argue that unlike COPPA, which provides clear guidelines in the determination of whether a website is directed towards children, the California law&rsquo;s language regarding &ldquo;directed to minors&rdquo; is unclear. The California law does not take effect until January 1, 2015 and the delay may not pass without challenges.&nbsp; Issues that exist for S.B. 568 include potential First Amendment and Federal Pre-emption arguments.&nbsp;&nbsp; The fact that the California law also regulates information for children under 13, potentially places it in the same subject area as COPPA, and thus may trigger pre-emption by COPPA. While the true implications of the law won&rsquo;t be realized until January of 2015, it is clear that increased protection for teens who, as Jim Steyer, CEO of Common Sense Media, says, &ldquo;Self-reveal before they self-reflect&rdquo; is definitely gaining traction.

California’s New “Eraser Button” Law Allows Regretful Teens to Remove Embarrassing Internet Postings