BILL ANALYSIS
SB 1361
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Date of Hearing: June 22, 2010
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Mike Davis, Chair
SB 1361 (Corbett) - As Amended: April 19, 2010
SENATE VOTE : 25-4
SUBJECT : Social networking Internet Web sites: minors' privacy
SUMMARY : Prohibits a social networking Internet Web site, as
defined, from displaying the home address or telephone number,
in specified text fields, of a registered user who identifies
himself/herself as under 18 years of age. Specifically, this
bill :
1)Provides that a social networking Internet Web site shall not
display, 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.
2)Clarifies that the provisions of subdivision (a), above, shall
only apply to a text field specifically designated to display
the registered user's home address or telephone number.
3)Provides the following definitions:
a) "Social networking Internet Web site" means 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.
b) "Social networking Internet Web site" does not include a
business, organization, or other entity that only provides
electronic mail service.
c) "Registered user" means any person who has created an
account for purposes of accessing a social networking
Internet Web site.
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4)Declares that a social networking Internet Web site that
willfully and knowingly violates any provision of this part
shall be liable for a civil penalty, not to exceed ten
thousand dollars ($10,000) for each violation of this part.
EXISTING LAW:
1)Provides that, among other rights, all people have an
inalienable right to pursue and obtain privacy. (Cal. Const.,
art. I, Sec. 1.)
2)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.)
3)Existing case law further 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.)
4)Existing case law declares 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.)
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement and Support : Most 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.
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According to the author, "Senate Bill 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
numbers makes them susceptible to identity theft, sexual
predators and the misuse of their personal information."
"Senate Bill 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 numbers
makes them susceptible to identity theft, sexual predators and
the misuse of their personal information. Senate Bill 1361
protects the privacy of minors by requiring social networking
Web sites remove the option for minors under the age of 18 to
post a home address and telephone number on their personal
profile."
Supporters believe this measure is needed, in part based upon
finding in a recent study done by the Polly Klaas Foundation,
which found that 42% of online teens said they have posted
information about themselves on the internet so others can see
it and contact them. More than half of the respondents (56%)
say they have been asked personal questions online. One in
ten tweens (ages 8-12) say they communicate with people they
do not know online.
Crime Victims United adds in support, "Millions of California
children who use the internet every day are at risk from
sexual predators. While the Internet is one of the most
helpful technological inventions of this century, it has also
provided an alternative avenue for predators to victimize
unsuspecting youth. Child predators in particular are moving
from the playground to the World Wide Web in their search for
unsuspecting children."
2)Social Networks - Online Pedophile Concerns and Response : In
2006, according to a CBS News story, 14-year-old Judy Cajuste
was murdered in New Jersey, after she reportedly told friends
she met a man in his 20s through MySpace.com. Across the
country, in Northern California, 15-year-old Kayla Reed was
also active on MySpace until the day she disappeared. The
Center for Missing and Exploited Children revealed that in
2005, more than 2,600 incidents of adults using the Internet
to entice children. (You're 15: Who's Watching You Online? On
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Networking Sites, Predators, Police And Parents Track Teens'
Activity, CBS News Online, June 14, 2006, Christine Lagorio.)
To test the dangers posed to children in the online community,
again in 2006, "Wired News ran the names of randomly selected
registered sex offenders in San Francisco and neighboring
Sonoma County through MySpace's user search engine, and turned
up no fewer than five men whose self-reported names,
photographs, ages, astrological signs, locations and (in two
instances) heights matched those of profiles on the state's
online sex offender registry." (MySpace Faces a Perp Problem,
Wired.com, April 18, 2006, Jenn Shreve.)
The social networking community has responded to these safety
issues. "We are committed to keeping sex offenders off
MySpace," according to MySpace's Chief Security Officer
Hemanshu Nigam. In order to prevent online solicitation of
its members, MySpace developed and implemented a program
called "Sentinel Safe" which allows them to aggregate all
publicly available sex offender databases into a real-time
searchable form, making it easy to cross-reference and remove
known registered sex offenders from the MySpace community. In
February of 2009, MySpace revealed that 90,000 registered sex
offenders have been identified and removed from its site in
the past two years using this technology. The operators of
Sentinel Safe suggest, after a test run of their technology on
Facebook's site, that a portion of these offenders are now on
Facebook. (Thousands of MySpace Sex Offender Refugees Found
on Facebook, TechCrunch, February 3, 2009, Eric Schonfeld.)
Chris Kelly, then Facebook's chief privacy officer, strongly
disputed this allegation and claimed that, "We have devoted
significant resources to developing innovative and complex
systems to proactively monitor the site and its users,
including those not on a sex offender registry, for suspicious
activity (such as contacting minors or users of predominantly
one gender). We also have established a large team of
professional investigators to evaluate any reports of
potential abuse, including those surfaced by our systems or
from our users." (Id., note 2.)
3)Arguments in Opposition : This bill is opposed by members of
the tech and business communities, based upon three basic
strains of opposition. The first is that SB 1361 addresses a
problem which has not been shown to exist. Typical of this
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line is the letter from the California Chamber, which argues,
"We also question the fundamental premise behind SB 1361, that
the ability to share mailing addresses and phone numbers on a
social networking site will increase the incidence of child
predation. According to a recent report by the Internet
Safety Technical Taskforce, sexual predation of minors
typically involves minors who are aware that they are meeting
an adult for the purpose of engaging in sexual activity, and
those minors who are most at risk online often engage in risky
behaviors and have difficulties in other parts of their
lives."
The second line of reasoning is that SB 1361 does not use the
best approach to solving the problem of internet predators.
TechNet summarizes this position for the committee saying,
"TechNet believes that in instances where legislation is
necessary to combat nefarious behavior it must in general be
appropriately focused on combating that behavior while
preserving the utility of the products and permitting
innovation for useful purposes. That is where we believe SB
1361 misses the mark. SB 1361 is a one-size-fits-all tech
mandate that, unfairly targets social networking sites and
does not provide the best solution for protecting minors.
Indeed, a much more effective solution implemented by many
sites is to ensure people who register on social networking
sites as minors to have default private profiles - thus making
their information available to a smaller and more controlled
universe of people."
Finally, according opponents, SB 1361 may actually exacerbate
the problem it seeks to solve. This position is put forth by
the Internet Alliance (IA), who write the committee so say,
"The IA believes that this bill would actually undermine the
safeguards online companies have already put in place to
protect a child's privacy as is would encourage children to
'go underground' and simply lie about their age when setting
up a social network profile."
4)Suggested Amendment - Remove Internet Service Providers (ISPs)
From Bill : In addition to the opposition rationale above,
another basis for opposition comes from the California Cable
and Telecommunications Association. They represent the ISPs
who do not maintain content on the internet, such as that
targeted by the instant legislation, but rather simply provide
the platform upon which the social networks are built. The
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ISP opposition is based upon their concern that they will be
subject to lawsuits strictly based upon the actions of the
social networks-which they claim to have no control over.
Given that the author agrees that ISPs are not the targets of
this legislation, the committee suggests the following
amendment to remove them.
Page 2: line 13 to read as follows: 64. For purposes of this
part:
(a) "Social networking Internet Web site" means 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. "Social networking
Internet Web site" does not include Internet Service
Providers, or a business, organization, or other entity that
only provides electronic mail service.
5)Definition of Social Networking Internet Site : SB 1361 is
intended to address Social network 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 "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." However, federal law does have
a definition in the Keeping the Internet Devoid of Sexual
Predators Act of 2008, aka KIDS Act of 2008, (42 U.S.C.
Section 16915).
Definitions. (1) Of "social networking website". As
used in this Act, the term "social networking website"
- (A) means an Internet website - (i) that allows
users, through the creation of web pages or profiles
or by other means, to provide information about
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themselves that is available to the public or to other
users; and (ii) that offers a mechanism for
communication with other users where such users are
likely to include a substantial number of minors; and
(iii) whose primary purpose is to facilitate online
social interactions; and (B) includes any contractors
or agents used by the website to act on behalf of the
website in carrying out the purposes of this Act."
(42 U.S.C. Section 16915).
If the bill moves forward out of this committee, the author
may wish to consider making the definition of social network
mirror existing federal law, given the similar goals of the
state and federal legislation, and the benefits of consistency
in legal definitions.
6)Related Pending and Prior Legislation :
AB 1850 (Galgiani) would require convicted sex offenders to
register their internet accounts with law enforcement
agencies. Status: Held in the Assembly Appropriations
Committee.
AB 2208 (Torres) would prohibit any person required to
register as a sex offender from using any internet social
network Web site. Status: Held in the Assembly Appropriations
Committee.
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.
Status: Pending before Assembly Public Safety Committee, set
for hearing June 22, 2010.
SB 1300 (Correa) would enact the California Teen Dating
Violence Prevention Education Act, authorizing school
districts to offer 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. Status: Pending before Assembly Education
Committee, set for hearing June 30, 2010.
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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. Status: 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. Status: 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.
Status: This bill was vetoed.
7)Double-referral : Should this bill pass this committee, it
will be re-referred to the Assembly Committee on the
Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs' Association
California State Parents Teachers Association
California Teachers Association
Child Abuse Prevention Center
Crime Victims United of California
Junior Leagues of California
Marc Klass
Peace Officer Research Association of California
Privacy Rights Clearinghouse
Opposition
California Cable & Telecommunications Association
California Chamber
Internet Alliance
State Privacy and Security Coalition
TechAmerica
TechNet
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Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450