Legislative Updates - 6 February 2023

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Dear Friends:

This is GrassRoots’ 3rd weekly legislative update of this year’s General Session of the Utah State Legislature. At this time (3 weeks into the session), there are about 610 numbered bills for this session on the Utah Legislature website. Here are some bills and issues that we consider to be noteworthy.

Should minors’ access to social media be regulated? If so, how?

We believe that parents should regulate their children’s access to social media as their best judgment dictates, and that government and businesses should respect parental wishes in this regard.

But what about regulation by the state, as is being proposed in HB311Substitute, “Social Media Usage Amendments”, and in SB152, “Social Media Regulation Amendments”? It is conceivable to us that there is Probable Cause for some regulation of minors’ access to social media by state government, but here we would urge caution, given the dangers inherent in the employment of government force. While it is not our purpose here to advocate for such regulation, nor to detail exactly what such regulation should look like, it is conceivable to us that there may be Probable Cause for the state to:

• Require social media businesses to stop dealings with a minor, upon the request of his or her legal guardian(s);
• Invalidate a contract between a minor and a social media business in various circumstances—especially in case of the legal guardian’s objection to that contract; and-or
• Prohibit practices by social media businesses that are known to lead to addiction or other harm—especially to minors.

If we are to have such regulation, we would urge that it meet the following standards:

 
• Separation of Legislative, Executive, and Judicial Powers should be preserved, as required by Utah State Constitution, Article V, Section 1, which states: “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”
• In cases of punitive measures being imposed upon any person or entity, the standard should be “innocent until proven guilty”. Also punitive measures, as well as assignment of damages, should be consistent with constitutional standards of due process of law, such as right to Jury Trial. (See United States Constitution, Amendments V, VI, and VII; also Utah State Constitution, Article I, Sections 7, 10, 11, and 12.)
• Freedom from unreasonable searches. (See United States Constitution, Amendment IV; also Utah State Constitution, Article I, Section 14.) Government should not mandate that businesses collect personal information without Probable Cause. General warrants (one of the motivations for our Declaration of Independence in 1776) should be avoided.
• Freedom of Speech and Freedom of Association should be preserved. (See United States Constitution, Amendment I; also Utah State Constitution, Article I, Section 15.)
• In case of fines and civil penalties that are collected by the government, we would generally advocate that they go to the General Fund, with maximum control by the Legislature, rather than to some other fund. Channeling fines collected, to a fund that might benefit those involved in the enforcement action, is likely to create unhealthy conflicts of interest, and should be studiously avoided.

As we look at HB311Substitute and SB152, there are at least a couple Separation of Powers concerns that occur to us:

 
• Rule-making powers. Any time an executive entity (such as the Division of Consumer Protection) is empowered to make rules that are legislative in their nature, we believe this is a violation of the required Separation of Legislative and Executive Powers.
• Imposition of administrative fines. Any time an executive entity is empowered to impose fines or other punitive measures, we believe this is a violation of the required Separation of Executive and Judicial Powers.

Bills proposing to regulate social media

HB311Substitute, “Social Media Usage Amendments”, sponsored by Representative Teuscher and Senator Cullimore, would:

• enact the Utah Social Media Regulation Act;
• require a social media company to verify the age of Utah residents;
• require a social media company to obtain the consent of a parent or guardian before a Utah resident under the age of 18 may open or continue to use an account on a social media platform;
• provide that a contract entered into between a minor and an interactive computer service is invalid unless the minor's parent or legal guardian consents to the contract;
• prohibit a social media company from using a design or feature that the company knows causes a minor to have an addiction to a social media platform;
• direct the Division of Consumer Protection (division) to receive and investigate complaints of violations of the requirements established under the act and impose administrative fines for violations;
• authorize the division to seek enforcement through an injunction, civil penalties, and other relief through the judicial process;
• require fines and civil penalties to be deposited into the Consumer Protection Education and Training Fund;
• require an annual report from the division;
• authorize a private right of action to collect attorney fees and damages from a social media company for harm incurred or for non-compliance with requirements established by the act;
• provide for rule-making by the division (see especially lines 232-253); and
• provide a severability clause (possibly indicating that the sponsors know of possible constitutional problems with this bill).

HB311Substitute passed House Judiciary Committee 11-0 on Feb 3rd, and awaits consideration by the full House.

We are not opposed to all provisions of this bill. However, as outlined in the previous section, we have Separation of Powers, Fourth Amendment, and other concerns with HB311Substitute. GrassRoots favors a “no” vote on HB311Substitute.

SB152, “Social Media Regulation Amendments”, sponsored by Senator McKell and Representative Teuscher, would:

• enact the Utah Social Media Regulation Act;
• require a social media company to verify the age of Utah residents;
• require a social media company to obtain the consent of a parent or guardian before a Utah resident under the age of 18 may maintain or open an account;
• prohibit a social media company from permitting a person to open an account if that person does not meet age requirements under state or federal law;
• require that for accounts held by a Utah resident who is under the age of 18, certain social media companies: a) shall prohibit direct messaging with certain accounts; b) may not show a minor's account in search results; c) may not display advertising; d) may not collect, share, or use personal information from the account, with certain exceptions; e) may not target or suggest ads, accounts, or content; and f) shall limit hours of access, subject to parental or guardian direction;
• require a social media company to provide a parent or guardian access to the content and interactions of an account held by a Utah resident under the age of 18;
• direct the Division of Consumer Protection (division) to receive and investigate complaints of violations of the requirements established under the act and impose administrative fines for violations;
• authorize the division to seek enforcement through an injunction, civil penalties, and other relief through the judicial process;
• require fines and civil penalties to be deposited into the Consumer Protection Education and Training Fund;
• require an annual report from the division;
• authorize a private right of action to collect attorney fees and damages from a social media company for harm incurred in relation to a violation of the requirements established by the act; and
• provide a severability clause (possibly indicating that the sponsors know of possible constitutional problems with this bill).

SB152 passed the Senate Business and Labor Committee 8-0 on Jan 31st, and awaits consideration on the Senate 2nd reading calendar.

We are not opposed to all provisions of this bill. However, as outlined in the previous section of this update, we have Separation of Powers, Fourth Amendment, and other concerns with SB152. GrassRoots favors a “no” vote on SB152.

Updated status on bills covered in past GrassRoots updates:

HB150 was replaced by HB150Substitute, “Emergency Water Shortages Amendments”, sponsored by Representative Albrecht and Senator McKell, which would, according to the bill’s long title:

• amend the powers of the Department of Agriculture and Food;
• provide for the use of money in the Agriculture Resource Development Fund for emergency water shortages loans;
• address governmental immunity;
• enact the Water Preferences During Emergencies chapter, including: a) providing for scope of the chapter; b) outlining the process for declaring a temporary water shortage emergency; c) addressing water use preferences under a temporary water shortage emergency; d) providing for compensation related to water use preferences; and e) addressing rulemaking by the Department of Agriculture and Food;
• repeal existing statutes related to water preferences and a study; and
• appropriate for fiscal year 2024: to the Department of Agriculture and Food - Agriculture Resource Development Fund, as a one-time appropriation: from the General Fund, $10,000,000.

Additional coverage of SB150 (original version) may be found in our update of January 30th, which also discusses constitutional principles that should be remembered in dealing with emergencies and disasters.

HB150Substitute passed the House Natural Resources, Agriculture, and Environment Committee 9-2 on Jan 30th, and awaits consideration by the full House. (It is “circled”, meaning it can be considered at any time.)

Our study of HB150Substitute and its various cross-references is incomplete. However, we are still concerned that HB150Substitute relies excessively, at least in the case of a gubernatorial declaration of “Temporary Water Shortage Emergency” (which may be declared for up to 6 months), on top-down executive decisions, rather than on Free Market Principles. For instance, who will the Governor “prioritize” in any declared emergency? “Big folks” like the lithium and magnesium miners of the Great Salt Lake, federally operated data centers that use vast amounts of water to cool their computers, and neighboring states that buy some of our water? Or “little folks” like family farms, gardens, and orchards? (The “Big Folks” often have greater influence over top-down decision-making through their paid lobbyists, more-noticeable political campaign contributions, well-paid attorneys, and other connections.)

We should be ultra-cautious about any executive declarations of “Emergency” that tend to put legislative powers into executive hands. GrassRoots tentatively favors a “no” vote on HB150Substitute.

SB19, “Medicaid Dental Waiver Amendments”, sponsored by Senator Vickers and Representative Eliason, would require the Department of Health and Human Services to request authorization to provide dental services to Medicaid-eligible adults not already eligible for dental services. Additional coverage of SB19 may be found in our updates of January 23rd and January 30th.

SB19 passed the House Health and Human Services Committee 11-0 on Feb 1st, and awaits consideration by the full House

GrassRoots still favors a “no” vote on SB19.

SB100Sub2, “School Gender Identity Policies”, sponsored by Senator Weiler and Representative Gricius, would: 

 
• require each school and each local governing board to ensure a parent's right to access the education record of the parent's child; and
• prohibit a school or local education agency from prohibiting a parent's access to the education record of the parent's child.

Additional coverage of various versions of SB100 may be found in our updates of January 23rd and January 30th.

SB100Sub2 passed the House 59-6 on Feb 1st, and the Senate 22-6 on Feb 3rd, and awaits action by the Governor.

GrassRoots favors the Governor signing SB100Sub2.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Vice-Chairman, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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