SB 198: Government Control of Online Speech

This bill did not receive a vote.

Last year, in the face of growing disdain for tech platforms online, the Legislature passed a bill to allow the government to meddle with online speech. Unfortunately, the bill was riddled with constitutional problems, running afoul of the First Amendment, and it was ultimately vetoed by the Governor. 

This year, Senator Michael McKell revamped and reintroduced the same bill, taking out some of the thornier issues. Despite these revisions, Senate Bill 198 is equally problematic. This legislation violates basic principles of law and sound public policy. Three key issues stand out in this bill.

First, the bill restricts how a platform communicates its terms of service, which may overstep the Legislature’s authority to restrict speech and violate the First Amendment. The bill also heavily restricts a platform’s ability to change its terms of service and moderation practices, opening platforms to investigations and civil liability for violations. 

Second, the bill creates a value-signaling requirement. In essence, any time a company updates its terms of service in response to a new social, political, or cultural issue, the company must notify its users of the change, which is equivalent to a public statement of support or opposition on an issue. As with most content issues, there is no way to make a statement of support or opposition to certain content on a platform without the added benefit of context. In addition to running afoul of the First Amendment, this component of the bill is also bad public policy because it encourages oversimplifying discussions about important societal topics.

Finally, the bill undermines the privacy interests of Utah users by forcing companies to track and monitor user location. The definition of a “Utah account holder” is tied to the account holder’s location at the time of interaction, meaning a platform would need to know a user’s physical location while posting or engaging with content. The platform would also need to keep that location data for an extended period of time to defend itself against lawsuits from the Attorney General. This would open up users, even beyond Utah, to privacy risks. It could also create an avenue for law enforcement to demand this location data for use as evidence against users.