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1st Amendment Concerns

As 1 Calif. Social Media Bill Dies, Others Advance

California legislators killed a social media bill that would have held platforms civilly liable for addicting children, after opposition from the web industry and free-speech advocates. But some other controversial internet bills made it through Friday’s cutoff for fiscal committee votes. Bills on broadband, free inmate calls and the 988 mental-health hotline also advanced to floor votes.

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The California State Legislature adjourns Aug. 31. While all the bills that advanced to the floor last week have already passed one chamber, many received amendments and will need to go back to their original chamber if they pass the opposite chamber.

The Senate Appropriations Committee skipped the addiction bill (AB-2408) on Thursday’s agenda. Sponsor Assemblyman Jordan Cunningham (R) was “extremely disappointed” that Chairman Anthony Portantino (D) “made the unilateral decision to hold” the bill, he said in a statement. “The bill’s death means that a handful of social media companies will be able to continue their experiment on millions of California kids, causing generational harm.” The bill “received zero no votes in the Legislature this year,” he added. Portantino didn’t comment Friday.

Several internet bills remain alive. Senate appropriators voted 5-0 for AB-587 to require quarterly reports to the state attorney general on terms and content moderation policies. It voted 6-0 for AB-2879 to require social media platforms to disclose cyberbullying reporting procedures in their terms of service. The panel voted 5-0 for AB-2273 to set rules for businesses that provide online services likely to be accessed by children. Meanwhile, the Assembly Appropriations Committee cleared SB-1018 to require social media platforms with at least 1 million monthly users to annually disclose content moderation efforts. Committee Republicans opposed it. The panel advanced, without Republicans voting, SB-1056 to require the same platforms to say if they have a mechanism for reporting violent posts.

AB-2408’s demise pleased NetChoice. “While we understand the concerns parents and lawmakers have about the time young people spend online and the content they are exposed to,” the bill caused free-speech concerns and “would have had a negative impact on parents and young people’s use of technology,” said Policy Counsel Jennifer Huddleston. NetChoice is concerned about lawmakers advancing AB-587, AB-2879 and AB-2273, which are burdensome and violate free speech, said Huddleston, comparing bills to Florida and Texas laws that the group challenged in court.

AB-2408 had good intentions but would have violated the First Amendment and “led to overbroad censorship,” said Electronic Frontier Foundation Senior Legislative Activist Hayley Tsukayama. “It’s tough because obviously we’re an organization that” supports both free expression and privacy, “and this is one of those areas where those two are really in some tension.” Punishing platforms for how they exercise their editorial control is problematic, she said. AB-2273 includes “vague” standards and the group is unclear on how it would work, said Tsukayama. EFF didn’t take a position on AB-587 but opposed transparency mandates in Texas and Florida social media bills. EFF wants companies to be transparent about policies but gets “nervous” about government-mandated polices, she said.

California could ruin the internet if AB-2408, AB-2273 or AB-587 became law, said Santa Clara University law professor Eric Goldman: Litigation is inevitable if they become law. The first two bills seek to mandate special handling of children’s data, which would require businesses to authenticate a user’s age by collecting possibly sensitive data that could increase privacy and security risks for children and adults, he said. It would also mean users would face age checks on every website covered by the proposed law. “That checkpoint breaks the internet” and “drives people away from using services because they don’t want to go through the hoops.”

AB-2273 is worse than AB-2408 because it applies to more businesses than social media websites, said Goldman. AB-2408 would have ended minors’ use of social media, said Goldman. Some might say that’s a good idea, but kids can benefit from using those services, he said. California’s AB-587 requires companies to disclose policies like the Texas and Florida social media laws without “all the awful other stuff,” said Goldman. California’s bill doesn’t restrict what platforms include or exclude. However, asking questions can still “send messages to the people who have to answer them” and act as a form of censorship, especially when coupled with the threat of enforcement if a business doesn’t respond, said Goldman: Proposals in blue states like California and New York and red states like Texas and Florida shows “censorship is bipartisan.”

The First Amendment Coalition isn’t sorry AB-2408 failed, said Legal Director David Loy. The nonprofit free-speech advocacy group opposed the bill in a May 17 letter. "It was a clear violation of editorial discretion on how to curate and publish content protected by the First Amendment,” said Loy. He understands “concerns about social media, but speech is speech.” Whether such proposals come “from red state or blue state, it’s a very unfortunate tendency of elected officials to blame the speech instead of treat the problem.”

Contested CASF Changes

Big ISPs and EFF faced off on a broadband bill to revise the CPUC’s review process for California Advanced Services Fund (CASF) grant applications. The Senate Appropriations Committee cleared AB-2749 in a 7-0 vote Thursday. EFF will pursue a veto if it passes the legislature, said Chao Jun Lu, legislative associate.

USTelecom says the bill would streamline the CASF process and speed deployment by deeming applications granted unless denied by the California Public Utilities Commission within 180 days. EFF says that limit would benefit incumbents and discourage competition, but in an Aug. 4 opinion, USTelecom CEO Jonathan Spalter claimed opponents seek to stall the process to advantage municipally owned networks.

Opposing AB-2749 for muni broadband reasons misses “the forest for the trees,” Free State Foundation senior fellow Andrew Long agreed in a Tuesday blog post. The shot clock would “decrease the odds that time runs out before federal subsidies can be leveraged to connect unserved Californians,” he said.

The shot clock would also hurt small ISPs with fewer resources than big incumbents, responded Lu. Six months isn’t a long time for reviewing applications, said the EFF lobbyist. The FCC took a year and a half to reject Starlink and LTD Broadband applications for the Rural Digital Opportunity Fund (See 2208100050), noted Lu: The nation could have lost about $2 billion if there had been a 180-day shot clock. At least allow the CPUC to unilaterally extend the clock to give applications more technical or financial scrutiny, he said.

EFF also opposes AB-2749 requiring wireless eligibility for broadband funding, said Lu: That’s inconsistent with NTIA guidance stating a fiber preference for infrastructure money and could mean the state loses out on federal funding.

AB-2749 "will boost important efforts to deliver high speed broadband services to unserved and underserved California communities by modernizing the process by which applicants can pursue broadband grant funding,” said CTIA Senior Vice President-State Affairs Jamie Hastings.

ICS, 988 Bills Advance

Assembly appropriators advanced a bill to make inmate calls free (see 2208030056), despite all Republican committee members voting no. SB-1008 was amended to remove a requirement, opposed by sheriffs, to give every inmate an hour a day on the phone.

The Assembly panel unanimously cleared SB-857 to extend until Jan. 1, 2028, California High-Cost Fund A and B programs, set to expire Jan. 1. With no Republicans voting, the committee cleared SB-717 to require a report about broadband deployment barriers on government-owned structures, private and public lands and buildings and public rights of way. With Republicans all voting no, the committee advanced SB-884 to require the CPUC to establish an electric undergrounding program that requires telecom providers to put non-wireless infrastructure underground and pay proportionate costs.

The Senate fiscal committee voted 7-0 to advance AB-2750 to require a state digital equity plan by Jan. 1, 2024, and for AB-32 to keep temporary telehealth changes made on an emergency basis during the COVID-19 pandemic. The fiscal panel voted 5-0 for AB-988 to implement the national 988 suicide prevention hotline with an 8 cent monthly surcharge on wireline, wireless and VoIP lines. Senators voted 5-0 to clear AB-1262, which seeks to restrict use of recordings or transcriptions of what users say to or in the presence of smart speakers.