California’s New “Eraser Law” Takes Effect January 1, 2015

Ever wish you could delete that embarrassing picture you posted to Facebook from cyberspace…permanently? California’s new “Eraser Law” gives California minors the ability to do just that. Well, except, maybe not permanently.

Senate Bill 568, approved by the Governor on September 23, 2013 and codified as California Business & Professions Code section 22580 et seq., goes into effect on January 1, 2015. Notably, SB 568 requires that operators of an Internet Website, online service, online application or mobile application, such as Facebook, Twitter, and Instagram, afford minors the option to either self-remove posted content or request that the operator remove the posted content. Operators may choose which option they prefer but must notify minors of the option and provide clear instructions regarding self-removal or submitting a request for removal. A minor cannot self-remove or request removal unless he or she is a registered user of the service.

SB 568 applies only to operators whose service is “directed to minors,” meaning it was created for “the purpose of reaching an audience that is predominately comprised of minors, and is not intended for a more general audience comprised of adults,” or who have “actual knowledge” that the service is being used by a minor.

SB 568 aims to protect minors, particularly teenagers, who often impulsively post pictures and messages without thinking through the consequences of their actions by allowing them to remove such content once they have reconsidered. However, a closer look at SB 568 reveals that “removal” does not afford minors much protection.

First, the new legislation states that removal means only making the original post no longer visible to other users of the service and the public. In circumstances where the original post has been stored, reposted, or republished by another registered user, the content or information in the original post may still be visible to other users of the service or the public. Further, rather than remove the original post, operators have the discretion to “anonymize” the content or information, so the minor cannot be individually identified.

Second, the minor is responsible for correctly following the directions for self-removal or submitting a request for removal. Failure to do so may result in the operator declining to remove the content or information.

Third, although the posted content or information may no longer be visible to other users of the service and the public, it may remain on the operator’s servers in some form – meaning it still exists in cyberspace.

Fourth, operators are not required to remove posted content or information where doing so is prohibited by other federal or state law or where the minor has received compensation or other consideration for providing the content.

Fifth, law enforcement may obtain any content or information from the operator as authorized by law or pursuant to a lawful court order.

Operators are required to notify minors, who are registered users, that they should not expect removal to be “complete or comprehensive.”

Although the intent of the new legislation is to protect minors from their own self-destruction, minors, their parents or guardians, and school administrators should be aware that nothing in cyberspace ever really permanently deleted.

SB 568 also imposed requirements regarding advertising to minors. We will address the advertising provisions of the new law in a future post.

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