WASHINGTON, November 20, 2023 — A Utah law requiring age verification for social media accounts is likely to face First Amendment lawsuits, experts warned during an online panel Wednesday hosted by Broadband Breakfast.

The law, set to take effect in March 2024, mandates that all social media users in Utah verify their age and imposes additional restrictions on minors’ accounts.

The Utah law raises the same constitutional issues that have led courts to strike down similar laws requiring age verification, said Aaron Mackey, free speech and transparency litigation director at the non-profit Electronic Frontier Foundation.

“What you have done is you have substantially burdened everyone’s First Amendment right to access information online that includes both adults and minors,” Mackey said. “You make no difference between the autonomy and First Amendment rights of older teens and young adults” versus young children, he said.

But Donna Rice Hughes, CEO of Enough is Enough, contended that age verification technology has successfully restricted minors’ access to pornography and could be applied to social media as well.

“Utah was one of the first states [to] have age verification technology in place to keep minor children under the age of 18 off of porn sites and it’s working,” she said.

Tony Allen, executive director of Age Check Certification Scheme, agreed that age verification systems had progressed considerably from a generation ago, when the Supreme Court in 2002’s Ashcroft v. American Civil Liberties Union, struck down the 1998 Child Online Protection Act. The law had been designed to shield minors from indecent material, but the court ruled that age-verification methods often failed at that task.

Andrew Zack, policy manager at the Family Online Safety Institute, said that his organization he welcomed interest in youth safety policies from Utah.

But Zack said, “We still have some concerns about the potential unintended consequences that come with this law,”  worrying particularly about potential unintended consequences for teen privacy and expression rights.

Taylor Barkley, director of technology and innovation at the Center for Growth and Opportunity, highlighted the importance of understanding the specific problems the law aims to address. “Policy Solutions have trade-offs.” urging that solutions be tailored to the problems identified.

Panelists generally agreed that comprehensive data privacy legislation could help address social media concerns without facing the same First Amendment hurdles.

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Wednesday, November 15, 2023 – Social Media for Kids in Utah

In March 2023, Utah became the first state to adopt laws regulating kids’ access to social media. This legislative stride was rapidly followed by several states, including Arkansas, Illinois, Louisiana, and Mississippi, with numerous others contemplating similar measures. For nearly two decades, social media platforms enjoyed unbridled growth and influence. The landscape is now changing as lawmakers become more active in shaping the future of digital communication. This transformation calls for a nuanced evaluation of the current state of social media in the United States, particularly in light of Utah’s pioneering role. Is age verification the right way to go? What are the broader implications of this regulatory trend for the future of digital communication and online privacy across the country?

Panelists

• Andrew Zack, Policy Manager, Family Online Safety Institute
• Donna Rice Hughes, President and CEO of Enough Is Enough
• Taylor Barkley, Director of Technology and Innovation, Center for Growth and Opportunity
• Tony Allen, Executive Director, Age Check Certification Scheme
• Aaron Mackey, Free Speech and Transparency Litigation Director, Electronic Frontier Foundation
• Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources

• Utah Protecting Minors Online, State of Utah web site
• Opinion: Does Utah’s social media law respect teens’ rights?, Stephen Balkam, Deseret News
• Twitter thread by Taylor Barkley
• Good Digital Parenting Resources, Family Online Safety Institute
• Coming to Terms with Age Assurance, Family Online Safety Institute
• Making Sense of Age Assurance: Enabling Safer Online Experiences, Family Online Safety Institute
• Social Media and Minors, Center for Growth and Opportunity
• Clicks and Codes: Social Media Awareness Legislation in the States, Center for Growth and Opportunity
• What Should Policymakers Do about Social Media and Minors?, Center for Growth and Opportunity
• Internet Safety 101– Enough Is Enough’s designated website to educate, equip and empower parents and caregivers
  Internet Safety 101 Downloadable Parent Quick Guides and  Resources, Enough is Enough
• Rein In Big Tech, 30 second shararable clip from Enough is Enough
• Rein in Big Tech for the sake of our children, Donna Rice Hughes, Washington Times
• Treat Big Tech like Big Tobacco to protect our kids, Donna Rice Hughes, Fox News
• To Address Online Harms, We Must Consider Privacy First, Electronic Frontier Foundation

Andrew Zack is the Policy Manager for the Family Online Safety Institute, leading policy and research work relating to online safety issues, laws, and regulations. He works with federal and state legislatures, relevant federal agencies, and industry leaders to develop and advance policies that promote safe and positive online experience for families. Andrew joined FOSI after five years in Senator Ed Markey’s office, where he worked primarily on education, child welfare, and disability policies. Andrew studied Government and Psychology at the College of William and Mary.

Donna Rice Hughes, President and CEO of Enough Is Enough is an internationally known Internet safety expert, author, speaker and producer. Her vision, expertise and advocacy helped to birth the Internet safety movement in America at the advent of the digital age. Since 1994, she has been a pioneering leader on the frontlines of U.S. efforts to make the internet safer for children and families by implementing a three-pronged strategy of the public, the technology industry and legal community sharing the responsibility to protect children online.

Taylor Barkley is the Director of Technology and Innovation at the Center for Growth and Opportunity where he manages the research agenda, strategy, and represents the technology and innovation portfolio. His primary research and expertise are at the intersection of culture, technology, and innovation. Prior roles in tech policy have been at Stand Together, the Competitive Enterprise Institute, and the Mercatus Center at George Mason University.

Tony Allen a Chartered Trading Standards Practitioner and acknowledged specialist in age restricted sales law and practice. He is the Chair of the UK Government’s Expert Panel on Age Restrictions and Executive Director of a UKAS accredited conformity assessment body specialising in age and identity assurance testing and certification. He is the Technical Editor of the current international standard for Age Assurance Systems.

Aaron Mackey is EFF’s Free Speech and Transparency Litigation Director. He helps lead cases advancing free speech, anonymity, and privacy online while also working to increase public access to government records. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

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WASHINGTON, October 20, 2023 –While the Federal Trade Commission may have a hard time proving that Amazon has monopolistic power, some of its policies could be construed as anticompetitive.

That was the message antitrust experts delivered on Tuesday at an Information, Technology and Innovation Foundation panel on the FTC’s lawsuit against the online retailer in U.S. District Court in Seattle, Washington.

The agency’s complaint argues that the Amazon exerts unlawful monopoly power by forcing third party sellers to fulfill orders on Amazon and by preventing third parties selling products on Amazon from charging lower prices on other platforms.

The first policy coerces third-parties to fulfill orders on Amazon in order to get the e-commerce giant’s premium two-day shipping, the FTC has argued.

The second policy, dubbed anti-discounting, can be used as a form of price control despite having pro-competitive benefits like discouraging free riding and encouraging investment, said Kathleen Bradish, president of the Antitrust Institute.

Because Amazon requires merchants to maintain a price point on its marketplace, it can create barriers to entry when other marketplaces cannot attract merchants to sell their products at a lower price, she said.

A debate about anti-discounting

Steve Salop, professor of antitrust law at Georgetown University, added that “what Amazon does is it has algorithms that scrape all the relevant websites and if it discovers that the merchant’s product is being sold at a lower price anywhere else it contacts the merchant and says [that it has to] lower the price to [Amazon] or raise the price to” the consumer.

Herb Hovenkamp, an antitrust professor at the University of Pennsylvania, said that anti-discounting policies “only work on a product-by-product basis.”

When you look at each product Amazon sells, there may not be anticompetitive power impacting each product, said Hovenkamp.

Amazon sells almost 12 million products on their e-commerce site and its individual market shares for all those products varies, he said. That means it is hard to argue that Amazon holds a monopoly for every product it  sells.

Hovenkamp noted that while Amazon may succeed in areas such as streaming – which has no offline alternative – it struggles in “markets like try on clothing, tires, groceries…. Product by product, the question of how much competition Amazon faces from offline sellers varies immensely,” he said.

Bilal Sayyed, senior competition counsel at TechFreedom, a non-profit tech policy group, echoed this point: Anti-discounting policies can have anti-competitive consequences, but that they can also have pro-competitive benefits.

Sellers may not switch to other fulfillment companies because it does not make sense to do so given the “scale that Amazon has,” Bradish said, even if they prefer to use another e-commerce platform. But she acknowledged that having witnesses testify that those policies have impacted their behavior could favor the FTC’s point.

The role of Amazon’s fulfilment services

Amazon’s fulfillment services apply to several products it sells. But the FTC will need to demonstrate that monopoly prices are a result of those fulfillment services, said Hovenkamp.

“The hard part is going to be for the FTC to convince the fact finder that that’s a grouping of sales that’s capable of sustaining a monopoly markup,” he added. “It may be able to do that.”

While a large-scale operation like Amazon might have a cost advantage with fulfillment services, monopoly power will have to be determined by a finding of fact, he said.

By contrast, Sayyed argued that there is a clear pro-competitive justification for sellers using Amazon’s fulfillment services. That comes from the company’s reputation for quickly delivering goods to consumers.

“This idea that parties should be able to take advantage of the platform and the Amazon brand, but then [sell] their merchandise [through] a third party that may or may not meet the same fulfillment and delivery standards, really strikes me as very dangerous ground for the agency” to argue, said Sayyed.

WASHINGTON, October 2, 2023 – The chair of the Federal Trade Commission warned the artificial intelligence industry Wednesday that the agency is prepared to clamp down on any monopolistic practices, as she proposed more simplistic rules to avoid confrontation.

“We’re really firing on all cylinders to make sure that we’re meeting the moment and the enormous and urgent need for robust and vigorous enforcement,” Lina Khan said at the AI and Tech Summit hosted by Politico on Wednesday.

Khan emphasized that the FTC’s statute on consumer protection “prohibits unfair deceptive practices” and that provision extends to AI development.

The comments come as artificial intelligence products advance at a brisk pace. The advent of new chat bots – such as those from OpenAI and Google that are driven by the latest advances in large language models – has meant individuals can use AI to create content from basic text prompts.

Khan stated that working with Congress to administer “more simplicity in rules” to all businesses and market participants could promote a more equal playing field for competitors.

“It’s no secret that there are defendants that are pushing certain arguments about the FTC’s authority,” Khan said. “Historically we’ve seen that the rules that are most successful oftentimes are ones that are clear and that are simple and so a regime where you have bright line rules about what practices are permitted, what practices are prohibited, I think could provide a lot more clarity and also be much more administrable.”

Khan’s comments came the day before the agency and 17 states filed an antitrust lawsuit against Amazon, which is accusing the e-commerce giant of utilizing anticompetitive practices and unfair strategies to sustain its supremacy in the space.

“Obviously we don’t take on these cases lightly,” Khan said. “They are very resource intensive for us and so we think it’s a worthwhile use of those resources given just the significance of this market, the significance of online commerce, and the degree to which the public is being harmed and being deprived of the benefits of competition.”

Since being sworn in 2021, Khan’s FTC has filed antitrust lawsuits against tech giants Meta, Microsoft, and X, formerly known as Twitter.