BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1361 (Corbett)
As Amended April 5, 2010
Hearing Date: April 13, 2010
Fiscal: No
Urgency: No
JR/SK:jd
SUBJECT
Social Networking Internet Web sites: Privacy: Minors
DESCRIPTION
This bill would prohibit a social networking Internet Web site
from displaying the home address or telephone number, in
specified text fields, of a registered user who identifies
himself or herself as under 18 years of age. A site that
willfully and knowingly violates the prohibition would be
subject to a civil penalty, not to exceed $10,000 for each
violation.
BACKGROUND
Social networking Internet Web sites such as MySpace and
Facebook have grown in use and become more popular with users
who post messages and photos on a personal web page. Those
personal pages, generated by the social network, may also
display the user's address, phone number, and birth date. That
information may then be displayed to the user's friends or the
general public. Although users may limit who may see their
personal information, many users, including those under the age
of 18, may share that information with their "friends." The
list of "friends" for those users may include people who they do
not personally know, resulting in the sharing of personal
information about the minor with unknown persons.
In response to concerns about the sharing of that personal
information, this bill would prohibit social networking Web
sites from displaying the home address or phone number, in
designated text fields, of a registered user who identifies
(more)
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himself or herself as being under 18 years of age.
CHANGES TO EXISTING LAW
Existing law provides that, among other rights, all people have
an inalienable right to pursue and obtain privacy. (Cal.
Const., art. I, Sec. 1.)
Existing case law permits a person to bring an action in tort
for an invasion of privacy and provides that in order to state a
claim for violation of the constitutional right to privacy, a
plaintiff must establish the following three elements: (1) a
legally protected privacy interest; (2) a reasonable expectation
of privacy in the circumstances; and (3) conduct by the
defendant that constitutes a serious invasion of privacy. (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.)
Existing law recognizes four types of activities considered to
be an invasion of privacy, giving rise to civil liability
including the public disclosure of private facts. (Id.)
Existing case law provides that there is no reasonable
expectation of privacy in information posted on an Internet Web
site. The information is no longer a "private fact" that can be
protected from public disclosure. (Moreno v. Hanford Sentinel
(2009) 172 Cal.App.4th 1125.)
This bill would prohibit a social networking Internet Web site
from displaying to the public or other registered users the home
address or telephone number of a registered user who identifies
himself or herself as being under 18 years of age.
This bill would specify that provisions of this bill only apply
to designated text fields for the registered user's home address
or telephone number.
This bill would provide that a social networking Internet Web
site that willfully and knowingly violates the above prohibition
is liable for a civil penalty of up to $10,000 for each
violation.
This bill would also define "registered user" and "social
networking Internet Web site".
COMMENT
1. Stated need for the bill
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According to the author,
Certain social networking Web sites have fields on a
registered user's public profile where the registered user
can post personal contact information including home
address, telephone number and email address. On certain
social networking Web sites this ability extends to minors
under the age of 18.
If a person presents themselves as a minor when registering
to create a profile on a social networking site, SB 1361
stipulates that the social networking site can not make the
address or telephone number web fields available for display
on the minor's profile.
SB 1361 protects minors who publicly post their personal
contact information without understanding the dangerous
consequences of this activity. The public availability of a
minor's home address and telephone number makes them
susceptible to identity theft, sexual predators and misuse
of their personal information.
The author also notes that the included penalty only applies to
those Web sites that "willfully and knowingly" violate the
prohibition, thus, the penalty would not apply to Web sites in
cases where the user misrepresents his or her age to the site.
Privacy Rights Clearinghouse supports the bill and states, "A
disturbing study by the Polly Klass foundation found that 56
percent of teenagers said they have been asked personal
questions online. One in ten tweens (ages 8-12) say they
communicate with people they do not know online."
California State Sheriffs' Association supports the bill and
notes that this bill "is a practical step to protect our
children from potential online predators."
2. Opposition concerns; most recent amendments
As introduced, this bill would have prohibited a social
networking site from displaying "the home address or telephone
number of a registered user who is under 18 years of age" and
would have penalized a site for "willfully and knowingly" doing
so.
TechAmerica opposes this bill and states, "Liability under this
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language is created when a social networking site anywhere and
in any manner 'displays' (e.g., an email text) the home address
or telephone number of someone who is actually 18 years of age
or less ('who is under 18 years of age)" and notes that
"[v]erifying the true age of anyone is extraordinarily difficult
in any setting. On-line, it is impossible without fundamentally
changing the nature of the Internet." Two issues are raised:
1) how the information is displayed; and 2) verification of the
age of the registered user.
Amendments, as reflected in the April 5, 2010 version of this
bill, limit the bill to the display of a user's home address or
telephone number in "web field[s] specifically designated to
display the registered user's home address or telephone number."
A "web field" for a user's home address or telephone number
refers to assigned text fields for those narrow purposes. For
example, upon registration or within a registered user's
personal profile, a user may be given the opportunity to fill in
various text boxes for contact information such as a home
address, phone number, e-mail address, or current city. Staff
notes that a social networking site would not be held liable if
a user, who represents himself or herself as being under 18
years of age, makes available their home address or phone number
by other means on the site such as exchanges in a chat room or
posting the information in a comment on his or her "wall." As a
result, the author's most recent amendments would appear to
address this opposition concern.
With respect to TechAmerica's concern regarding verification of
age, amendments prohibit a social networking site from
displaying to the public or other registered users the home
address or telephone number of a user when the user "identifies
himself or herself as being under 18 years of age." This
amendment would hold a social networking site responsible if it
deliberately posts the information specifically designated for a
home address or telephone number when the user classifies
himself or herself as a minor. Staff notes that by limiting the
penalty to those violations, social networking sites would not
be held liable if the user misleads the site by misstating his
or her age. A social networking site would not be required to
verify a user's age. This amendment would also appear to
address TechAmerica's concern.
3. Definition of "social networking Internet Web site" and
"registered user"
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This bill defines "social networking Internet Web site" as "any
business, organization, or other entity that provides or offers
a service through the Internet that permits a registered user to
access, meet, congregate, or communicate with other registered
users for social networking purposes" and specifies that it does
not include "a business, organization, or other entity that only
provides electronic mail service."
Existing state law does not provide a definition for "social
networking Internet Web site." It may be noted that classifying
online communities, such as a social networking site, can be
somewhat difficult given the fluid nature of technology.
Various online communities, including chat rooms, message
boards, blogs, and instant messaging buddy lists, have a range
of levels of interaction and participation among their members.
This bill is intended to address Web sites where a registered
user may create a profile, connect that profile to other
registered users' profiles, and build a personal network. The
most commonly known examples of such social networking sites are
Facebook and MySpace.
This bill defines "registered user" as "any person who has
created an account for purposes of accessing a social networking
Internet Web site." A registered user of such a site may post
content to his or her individual profile and use tools embedded
within the site to contact other registered users. According to
the Pew Internet & American Life Project (Pew), young adults and
teenagers are among the most avid users of such Web sites.
4. Privacy protection for minors
Social networking sites offer people the opportunity to interact
and share information with other individuals online. As part of
the registration process, or when editing the member profile, a
user is generally given the opportunity to input his or her home
address and phone number into specified fields so that those
items can be shared with the user's network of friends or
public. To address concerns about displaying the personal
information of minors, this bill would prohibit a social
networking site from displaying that information in specified
text fields for users who identify themselves as being under the
age of 18 on the social networking site.
According to a report by Pew, "Social Media & Mobile Internet
Use Among Teens and Young Adults" (February, 2010), as of
September 2009, 93 percent of American teens between the ages of
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12 and 17 went online. Of this group of teens, 73 percent use
social networking sites compared to 65 percent in February 2008
and 55 percent in November 2006. In a previous report, "Teens,
Privacy & Online Social Networks," (April 2007), Pew notes:
Many, but not all, teens are aware of the risks of putting
information online in a public and durable environment. Many,
but certainly not all, teens make thoughtful choices about
what to share in what context.
Given the prevalence of minors online, from a public policy
standpoint, it is unclear why young adults would have a need to
broadly disclose their home address, or phone number, to anyone
including strangers. If the address is required for whatever
reason, the minor, or preferably their parent or guardian, can
contact that individual directly and provide the information.
5. Technical amendment
In order to use more common phrasing, the author has agreed to
the following amendment:
On page 2, line 10, strike "web field" and insert "text
field".
Support : California State Sheriffs' Association; Child Abuse
Prevention Center; Crime Victims United of California; Privacy
Rights Clearinghouse
Opposition : California Cable & Telecommunications Association;
TechAmerica
HISTORY
Source : Author
Related Pending Legislation :
SB 1204 (Runner) would prohibit a registered sex offender, as a
condition of his/her parole, from opening an account on, or
participating in, a social networking Internet Web site. This
bill is pending in the Senate Committee on Public Safety.
SB 1300 (Correa) would enact the California Teen Dating Violence
Prevention Education Act, authorizing school districts to offer
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teen dating violence prevention education and requiring the
State Board of Education to incorporate teen dating violence and
sexual violence education into the health curriculum. A school
district which chooses to implement such a program would be
required to include, among other topics, instruction and
materials on identifying internet abuse and cyber bullying.
This bill is pending in the Senate Committee on Education.
AB 1850 (Galgiani) would require convicted sex offenders to
register their internet accounts with law enforcement agencies.
This bill is pending in the Assembly Committee on Public Safety.
AB 2208 (Torres) would prohibit any person required to register
as a sex offender from using any internet social network Web
site. This bill is pending in the Assembly Committee on Public
Safety.
Prior Legislation :
AB 632 (Davis, 2009) would have required a social networking
Internet Web site to provide a disclosure to users that an image
which is uploaded onto the Web site is capable of being copied,
without consent, by persons who view the image, or copied in
violation of the privacy policy, terms of use, or other policy
of the site. This bill was vetoed.
ACR 106 (Nava, 2008) would have urged user-generated content Web
sites to work with the Safety Technical Task Force and law
enforcement to reduce the use of those Web sites for purposes of
criminal behavior. This resolution died on the Assembly Floor.
SB 1740 (Murray, 2006) would have required the California
Department of Education to develop and maintain internet safety
guidelines for use by local education agencies. This bill was
vetoed.
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