New York Enacts the SAFE for Kids Act

On June 20, 2024, New York Governor Kathy Hochul signed the Stop Addictive Feeds Exploitation for Kids Act (the “SAFE for Kids Act”) into law.  The SAFE for Kids Act imposes new responsibilities on “covered operators”, defined as parties who operate or provide an “addictive social media platform.”

An “addictive social media platform” is defined by the SAFE for Kids Act as a website, online service, online application, or mobile application (“Online Service”) that offers or provides minors in New York an “addictive feed” as a significant part of the services provided by such Online Service.

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Addictive Feeds

Addictive feeds, or algorithmically driven feeds, are regulated under the SAFE for Kids Act.  The SAFE for Kids Act further defines “addictive feeds” as any Online Service, or portion thereof, where “multiple pieces of media generated or shared by users” are “recommended, selected, or prioritized for display” based on information associated with the user or their device, unless any of the following conditions are met:

• The recommendation, prioritization, or selection is based on information that is not persistently associated with the user or user’s device, and does not concern the user’s previous interactions with media generated or shared by other users;
  
  
• The recommendation, prioritization, or selection is based on user-selected privacy or accessibility settings, or technical information concerning the user’s device;
  
  
• The user expressly and unambiguously requested the specific media, media by the author, creator, or poster of media the user has subscribed to, or media shared by users to a page or group the user has subscribed to, provided that the media is not recommended, selected, or prioritized for display based, in whole or in part, on other information associated with the user or the user’s device that is not otherwise permissible under this subdivision;
  
  
• The user expressly and unambiguously requested that specific media, media by a specified author, creator, or poster of media the user has subscribed to, or media shared by users to a page or group the user has subscribed to pursuant to paragraph (c) of this subdivision, be blocked, prioritized, or deprioritized for display, provided that the media is not recommended, selected, or prioritized for display based, in whole or in part, on other information associated with the user or the user’s device that is not otherwise permissible under this subdivision;
  
  
• The media is direct and private communications;
  
  
• The media is recommended, selected, or prioritized only in response to a specific search inquiry by the user;
  
  
• The media recommended, selected, or prioritized for display is exclusively next in a pre-existing sequence from the same author, creator, poster, or source; or
  
  
• The recommendation, prioritization, or selection is necessary to comply with the provisions of, and any regulations promulgated pursuant to, the SAFE for Kids Act.

The SAFE for Kids Act applies to conduct taking place entirely or partially in New York, with conduct taking place “wholly outside” New York where an addictive social media platform is accessed by a covered minor physically located outside of New York.

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Age Verification; Restrictions on Overnight Notifications

The SAFE for Kids Act establishes restrictions regarding the exposure of covered minors to addictive feeds, including age verification requirements and overnight notification restrictions.  Covered operators are required to implement age verification mechanisms to determine the age of the users of their addictive social media platforms, and may only provide addictive feeds to a user where they have either employed commercially reasonable and technically feasible methods to confirm that the user is not a minor, or where they have obtained verifiable parental consent to provide an addictive feed to a user that is a covered minor.  The SAFE for Kids Act also prohibits covered operators from sending notifications related to an addictive feed to covered minors between 12 AM and 6 AM Eastern Time, unless such covered operator has obtained verifiable parental consent for such overnight notifications.  Covered operators are not permitted to withhold, degrade, lower the quality, or raise the price of any product, feature or service to a user due to such operator not being permitted to provide an addictive feed to such user.

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Rule making and Enforcement by NY Attorney General

No sooner than 180 days after the effective date of the SAFE for Kids Act, the New York attorney general may initiate legal action to:

• Enjoin any violations of the SAFE for Kids Act;
  
  
• Obtain restitution for any money or property obtained directly or indirectly from such violations;
  
  
• Disgorge any profits obtained directly or indirectly from such violations, including destruction of unlawfully obtained data;
  
  
• Seek damages caused directly or indirectly by such violations;
  
  
• Impose civil penalties of up to $5,000 per violation; or
  
  
• Seek any other relief deemed appropriate by the court, including preliminary relief.

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Legal Counsel Suggested

With the New York attorney general holding exclusive enforcement authority and rulemaking mandates regarding implementation and enforcement of the SAFE for Kids Act, and further regulations regarding enforcement of the SAFE for Kids Act forthcoming, we strongly advise covered operators to consult with data privacy counsel regarding what operational changes need to be put into place to ensure compliance with the SAFE for Kids Act going forward.