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The digital age has introduced unprecedented challenges in regulating online content, particularly concerning the safety and well-being of minors. In Texas, the debate over how to protect children online has culminated in the passage of the “Securing Children Online Through Parental Empowerment” (SCOPE) Act, also known as House Bill 18 (HB 18) in the 88th Legislative Session (2023). This legislation has ignited controversy, leading to legal challenges and raising questions about its impact on free speech, privacy, and the role of government in regulating the Internet.
In the latest development, the Foundation for Individual Rights and Expression (FIRE) filed a lawsuit against the SCOPE Act and its enforcement through the Office of the Texas Attorney General.
The FIRE Lawsuit Against the SCOPE Act
On August 16, 2024, FIRE filed a lawsuit against the SCOPE Act, challenging its constitutionality. The plaintiffs include various Texas-based organizations and individuals, such as Students Engaged in Advancing Texas (SEAT) and M.F., a high school student who uses social media for research and personal expression, Brandon Closson who is a 32-year old software engineer, and the Ampersand Group, an Austin-based company that handles advertising and marketing for various nonprofit organizations.
The lawsuit argues that the SCOPE Act violates the First Amendment by imposing overly broad restrictions on free speech. The plaintiffs contend that the law’s mandatory age verification and content filtering requirements infringe upon users’ rights to access and disseminate information online. They argue that the law could lead to over-censorship, where platforms might block content that is constitutionally protected out of caution or due to vague legal definitions.
Furthermore, the lawsuit highlights the potential negative consequences of the SCOPE Act’s enforcement, including the invasion of privacy through age verification processes and the exclusion of vulnerable populations who may not have access to government-issued IDs or who wish to remain anonymous online.
FIRE’s Legal Director Will Creeley had this to say about the legislation,
“The SCOPE Act combines all the worst aspects of previous bills. It has Utah’s age restrictions, California’s age-appropriate design problems, and Texas’ bad ‘harmful to minors’ standard. It’s the Frankenstein’s monster of internet speech control.”
FIRE has also sought to block similar legislation relating to age verification and child protection in Utah which would go into effect in October 2024. Notably, other attempts to accomplish similar results as HB 18 in states like California, Ohio, Indiana, Arkansas, and Mississippi have been blocked by the courts.
The SCOPE Act: Legislative Intent and Provisions
House Bill 18, authored by Texas State Rep. Shelby Slawson (R-Stephenville), was priority legislation of Texas House Speaker Dade Phelan’s (R-Beaumont), aiming to establish robust online protections for minors. The legislation passed the Texas House of Representatives with overwhelming support, garnering over 90 joint and coauthors from both major political parties. Only 20 Democrat House lawmakers voted against the legislation. The legislation passed unanimously in the Texas Senate.
HB 18 was designed to address the growing concerns about the impact of social media and digital platforms on children’s mental and emotional well-being. Key provisions of the SCOPE Act include:
- Parental Consent Requirement: Digital service providers (DSPs) are prohibited from allowing minors to sign terms of service or user agreements without parental approval. The bill outlines protocols for verifying the identity of a minor’s parent or guardian to ensure compliance.
- Protection Against Harm: The law mandates that DSPs exercise reasonable care to prevent physical, emotional, and developmental harm to minors. This includes preventing exposure to content related to suicide, eating disorders, substance abuse, bullying, deceptive marketing, and other harmful activities.
- Algorithm Transparency: DSPs are required to disclose the processes behind the algorithms that determine the content shown to minor users. This provision aims to increase transparency and accountability in how digital platforms influence minors’ online experiences.
- Non-Discrimination Clause: The bill prohibits DSPs from throttling or discontinuing service based on a parent or guardian’s compliance with the bill’s requirements.
- Severability Clause: HB 18 includes a severability provision, ensuring that if any part of the law is invalidated by a court, the remaining portions can still be enforced.
Texas Attorney General’s Role in Enforcing the SCOPE Act
The office of the Texas Attorney General is tasked with enforcing the SCOPE Act, which officially goes into effect on September 1, 2024. The law imposes several significant requirements on digital service providers, including:
- Age Verification: DSPs must verify the age of all users before allowing them to create an account. This requirement applies to a broad range of platforms, including social media sites, forums, and even some messaging apps.
- Content Filtering: DSPs are required to implement strategies to prevent minors from accessing certain types of content deemed harmful, including material related to suicide, substance abuse, and sexual exploitation. The law mandates that DSPs maintain comprehensive lists of prohibited content and keywords that could be used to circumvent filters.
- Restrictions on Targeted Advertising: The SCOPE Act prohibits targeted advertising to minors unless parental consent is obtained. Even with consent, DSPs are still prohibited from displaying ads for products or services that are illegal for minors, such as alcohol and tobacco.
- Penalties for Non-Compliance: The Texas Attorney General can bring enforcement actions against DSPs that fail to comply with the SCOPE Act, treating violations as deceptive trade practices under Texas law.
The Attorney General’s office has expressed that the SCOPE Act is a necessary step to protect minors from harmful online content and to empower parents to take control of their children’s digital lives. However, critics argue that the law’s provisions are not only invasive but also impractical, particularly concerning the reliability and security of age verification methods.
The Broader Implications
The legal battle over the SCOPE Act reflects the ongoing struggle to balance protecting minors online with safeguarding constitutional freedoms. While the intention behind the law is to shield children from harmful content, critics argue that its broad scope and stringent requirements could have unintended consequences.
One of the primary concerns is the potential for government overreach in regulating online content. The SCOPE Act’s provisions, particularly those related to content filtering and age verification, could set a precedent for other states to implement similar regulations, leading to a patchwork of laws that digital service providers must navigate. This could result in increased compliance costs and the potential for platforms to restrict access to content beyond what is necessary to protect minors.
Moreover, the SCOPE Act raises important questions about the effectiveness and ethics of age verification technologies. Critics argue that these methods are not only unreliable but also pose significant privacy risks. The collection of sensitive personal information, such as government IDs or biometric data, could expose users to identity theft and other forms of cybercrime.
Initial Reactions
Some were quick to take to Twitter/X to provide their thoughts.
Patrick Hedger, the Executive Director of the Taxpayer Protection Alliance, posted:
“So good to see @TheFIREorg getting more involved in the tech space. Tech is a frontier where new attacks on the First Amendment are being tested due to political disfavor for tech companies on both sides of the aisle. These are difficult issues but principles matter.”
Christin Bentley, a Texas State Republican Executive Committeewoman and Chairman of the Republican Party of Texas’ Legislative Priorities Subcommittee to Stop Sexualizing Texas Kids, posted:
“More proof of the attack on kids! Parental rights are children’s rights! I’m grateful that we have the best Attorney General in the nation to defend this lawsuit!”
Conclusion
The passage of the SCOPE Act marks a significant moment in Texas’ efforts to regulate the internet and protect minors from harmful content. However, the legal challenges it faces underscore the complexities of balancing child protection with free speech and privacy rights. As the courts deliberate on the constitutionality of the SCOPE Act, the outcome will likely have far-reaching implications for digital content regulation, not only in Texas but across the United States.
In the coming months, the legal landscape surrounding the SCOPE Act will continue to evolve, with potential consequences for how online platforms operate and how users interact with digital content. The debate over the SCOPE Act serves as a reminder of the ongoing challenges in crafting legislation that addresses the risks of the digital age while upholding the fundamental principles of freedom and privacy.
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