Letitia James Faces Narrow Path Crafting NY Social Media Rules

New York Attorney General Letitia James finds herself again in the national spotlight, this time shepherding a first-in-the-nation state law restricting social media for teens.

James (D), who gained attention for successful litigation against former President Donald Trump’s family business and the National Rifle Association, will likely tangle with tech companies and industry groups in yet another high-profile battle over the measure.

Her office will conduct rulemaking and enforcement for the SAFE for Kids Act (S.B. 7684A) signed by Gov. Kathy Hochul (D) in June. The law requires platforms such as TikTok Inc. and Instagram — owned by Meta Platforms Inc. — to obtain parental consent for them to provide algorithmic feeds for minors or send notifications between midnight and 6 a.m.

Earlier: Hochul Signs NY Bill Restricting Social Media Feeds for Teens

Tech industry groups opposed the legislation and could sue to thwart its implementation like they have done with social media laws targeted at youths in other states.

While the legal threat lingers, Hochul and state lawmakers have expressed confidence that James will develop age verification rules that can withstand legal scrutiny despite doubts it is possible. Her office declined to make James available for an interview.

“The rulemaking process gives the attorney general flexibility to have more detailed conversations regarding the industries that are impacted,” state Sen. Brad Hoylman-Sigal (D), who has worked with James on price-gouging regulations, said. “It’s sometimes very hard to reach a consensus on specifics in the statutory process and at the same time it can hurt the chances of the bill in its passage if it’s too detailed.”

Hochul and legislators gave James an impossible task by making her determine age verification for the new law considering the legal and technological difficulties, Randi Singer, an attorney with Sidley Austin LLP, said.

“You can order someone to go create a unicorn, but you can’t, right?” Singer, who has represented tech companies including eBay Inc., said.

Age Verification Challenge Looms

James must address through regulations how platforms would verify minors’ ages or parents’ identities. The law needs such a standard in place to be enforced.

Too strict of a standard — such as requiring government IDs — could endanger users’ privacy. Other approaches, such as allowing users to verify their ages with a simple checkbox, would be easily evaded.

James’ office has begun preliminary steps to consider such matters, but a spokesperson declined to give details.

The attorney general faces a difficult task considering how the law interferes with the relationship between platforms and their users, attorneys said.

“It’s not possible to issue any rules that would permit an age verification requirement of the type that New York has enacted to survive First Amendment scrutiny,” Adam Sieff, an attorney with Davis Wright Tremaine who has represented industry groups such as NetChoice, said in an interview.

Implications of Supreme Court Ruling

A US Supreme Court ruling Monday sending a pair of social media cases on Florida and Texas laws back to lower courts could complicate implementation of the New York law.

Social media algorithms qualify as a form of protected speech, Justice Elena Kagan wrote in the decision. “Facebook’s Community Standards and YouTube’s Community Guidelines detail the messages and videos that the platforms disfavor,” she said. “The platforms write algorithms to implement those standards.”

In one of the cases, the lower court will have to consider whether Texas overstepped its authority by limiting how social media companies can censure posts on their platforms. The ruling also threatens laws in states beyond Texas and Florida, Jess Miers, senior counsel at the tech industry group Chamber of Progress, said.

“They attached a major warning label, not only to Florida and Texas but really for any future lawmakers at the state or federal level who are attempting to regulate the expression capability of these online services,” Miers said of the justices.

Supporters of the SAFE for Kids Act argue the law is important for public health and doesn’t violate the First Amendment because it targets the presentation of posts rather than their content.

Regulatory Process

A key step for James will be posting a Notice of Proposed Rulemaking in the New York State Register that would detail the goals of potential regulations and their potential effects on the public, businesses, and state agencies.

James would then have to accept public comments for at least 60 days. Her office would have one year in total to finish regulations unless she sought a three-month extension.

Regulations could take effect after the public comment period finishes as long as no major changes are made to the proposed rules.

James could also choose to abandon the rulemaking process, which could mean the law never takes effect.

She appears likely to take her time with the regulatory process based on her efforts on another measure to implement rules to limit price increases during emergencies to under 10%. She has yet to finalize rules first unveiled in March 2023.

Singer said she didn’t expect James to finish regulations anytime soon for the SAFE for Kids Act or a companion measure signed by Hochul (S.B. 7685B) to restrict the data concerning underage users that companies can collect and sell..

“You’re several years away from anything actually becoming effective and a lot can change in that period of time,” Singer said of the social media law. “I can’t imagine a world where these rules are promulgated by 2026.”

Litigation in recent years has derailed similar efforts by other states, including California and Ohio, to restrict social media in the name of teens’ mental health.