In 2023, we analyzed the laws in Arkansas, Texas and Utah that require age verification and parental consent before allowing minors to create accounts on social media and other interactive platforms. A similar law – Secure Online Child Interaction And Age Limitation (SOCIAL) Act– was passed in Louisiana, which has an in-force date of July 1, 2024. Ohio legislators also enacted the Parental Notification by Social Media Operators Act (Ohio Act). All of these laws have requirements that are similar to the proposed federal law titled “Kids Online Safety Act” (KOSA), which we explain in a companion post).

We also reported on the constitutional challenges to the Arkansas Social Media Safety Act (SMSA). NetChoice, an industry group, sued Arkansas, calling SMSA “the latest attempt in a long line of government efforts to restrict new forms of expression based on concerns that they harm minors.” NetChoice’s complaint alleges that SMSA violates Arkansans’ First Amendment rights and also contravenes the Commerce Clause of the U.S. Constitution by regulating “commercial and speech-related activities that occur wholly outside Arkansas” (Count Four), among other arguments. SMSA was preliminarily enjoined on August 31, 2023. 

NetChoice also sued the State of Ohio to enjoin enforcement of the Ohio Act. On January 9, 2024,U.S. District Court Judge Algenon Marbley issued an Opinion and Order preventing Ohio’s Attorney General from enforcing the Ohio Act. On December 18, 2023, NetChoice filed a similar lawsuit in Utah’s U.S. District Court against Utah’s Attorney General seeking to enjoin enforcement of Utah’s SMRA. 

Despite these federal injunctions, Florida’s legislature just (February 23, 2024) passed a law requiring certain social media platforms to prohibit certain Florida minors from creating new accounts and to verify the age of account holders. The Florida law consists of three operative sections that take effect on July 1, 2024. Section 1 relates to age verification for minor social accounts and certain parental controls, Section 2 relates to age verification for online access to “material harmful to minors and Section 3 sets out the requirements for an “anonymous age verification method.” The Florida Attorney General’s Office may issue regulations for Part 1 and Part 2. 

Section 1

• Section 1 applies to a “social media platform”, which is defined as online forum that uses “algorithms” or has “addictive features” (Fla.Stat.§ 501.1736(1)(g)). If 10% of the “daily active users” (i.e., unique users who use the social media platform at least “80% of the days during the previous 12 months” (Fla.Stat.§ 501.1736(1)(d)) who are under age 16 use the social media platform an average of at least 2 hours per day, then the social media platform must:
  1. Not enter into a “contract” with the user to become an account holder, which is defined as a Florida resident identifiable by a unique identifier (Fla.Stat.§ 501.1736(2)(a)1); allowing a user to use the social media platform is deemed entering into a contract with the minor (Fla.Stat. § 501.1736(7))
  2. Verify the age of each account holder and deny an account to anyone who is not verified as age 16 or older (Fla.Stat.§ 501.1736(2)(a)2)
  3. Terminate the account of an account holder that the social media platform knows or “has reason to believe” is under age 16 but subject to the account holder’s right to dispute termination by verifying age (Fla.Stat.§ 501.1736(3)(b)1)
  4. Allow the minor or the minor’s parent to terminate the account (Fla.Stat. § 501.1736(3)(b)2-3)
  5. Permanently delete and personal information associated with the terminated account unless required by law to retain (Fla.Stat.§ 501.1736(3)(b)4).
• Age verification must use a “standard” method” and/or an “anonymous age verification method” (described below).
• A knowing or reckless violation of the above requirements is subject to enforcement by the Florida Attorney General’s Office with civil penalties up to $50,000 per violation plus attorney fees and court cost plus punitive damages for a consistent pattern of violation. 
• A private right of action in the name of the minor is available if the social media platform fails to terminate the account within the required time, i.e., within five (5) business days (for a minor’s request) and 10 business days (for a parent’s request) (Fla.Stat.§ 501.1736(4)(a)). The court may award up to $10,000 per claimant if the civil action is brought within one year after the violation.

Section 2 

• Any business that operates an online service through which the business knowingly and intentionally publishes or distributes material harmful to minors online must use an anonymous age verification method (described below) to prevent access to minors (under age 18). The online service also must include 33.3% or more of material harmful to minors.
• In Section 2, material harmless to minors is broadly and indefinitely defined as material that:
  • “The average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest;
  • Depicts or describes, in a patently offensive way, sexual conduct as specifically defined in s. 847.001(19); and
  • When taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
• Bona fide news and public interest broadcasts and sources and ISPs and their employees are excluded.
• A knowing or reckless violation of Section 2 requirements is subject to enforcement by the Florida Attorney General’s Office with civil penalties up to $50,000 per violation plus attorney fees and court cost plus punitive damages for a consistent pattern of violation. A private right of action in the name of the minor Floridan is available if the operator fails to prohibit of block the material harmful to minors. The court may award up to $10,000 per claimant if the civil action is brought within one year after the violation.

Section 3

• In Fla.Stat. § 501.1738, an “anonymous age verification method” must be conducted by a U.S. non-governmental independent third party. The third party is not permitted to retain, use or share personal information for any purpose other than age verification and must deploy reasonable security procedures to protection the personal information from unlawful processing. The Florida law does not provide any specifications for a “standard age verification method” other than the method must be “commercially reasonable” and “approved by the social media platform” (Fla.Stat. § 501.1736(1)(h)).
• A social media platform that knowingly or recklessly violates the requirements for an anonymous age verification method is subject to enforcement by the Florida Attorney General’s Office with civil penalties up to $50,000 per violation plus attorney fees and court costs (Fla.Stat. § 501.1736(1)3b). 

So far, Louisiana’s SOCIAL Act and the Texas SCOPE Act have both escaped a similar challenge in federal court. NetChoice has actively opposed Louisiana’s SOCIAL Act (see testimony and debate). Texas is, however, currently party to two lawsuits involving constitutional claims. One relates to a law that restricts minors’ online access to “sexual material harmful to minors”, which was preliminarily enjoined on August 31, 2023 and is under appeal. Texas and Florida also are defending their social media content moderation laws before the U.S. Supreme Court. The issue before the Court is whether the First Amendment to the U.S. Constitution prohibits social media platforms from making editorial choices about whether and how to publish and disseminate content. (The Florida law was enjoined by the 11^th Circuit but the Texas law was upheld by the 5^th Circuit.) Oral arguments were heard on February 26, 2024.

Please see our table below comparing the Arkansas, Texas and Utah laws updated to include the similar laws in Louisiana, Ohio and Florida.

Please contact the authors for more information.

The following is a chart comparing key provisions of the minor social media accounts laws in Utah, Arkansas, Texas, Louisiana, Ohio, and Florida (as of February 23, 2024)

Key Requirements

Enforcement