Among other sweeping provisions, HF 4138 mandates age estimation for all Minnesota account holders, requires verifiable parental consent before any minor aged 15 or younger can create or maintain an account, bans an overbroad set of features the bill characterizes as “addictive.” The bill would compromise the data security of Minnesota families, restrict constitutionally protected speech and editorial judgment, and unleash a wave of litigation that would harm rather than help the children it claims to protect.
NetChoice Testimony In Opposition to Minnesota HF 4138
March 17, 2026
Minnesota Legislature
House Judiciary Committee
Dear Members of the House Judiciary Committee:
On behalf of NetChoice, a trade association working to make the internet safe for free enterprise and free expression, I write to express our strong opposition to House Bill 4138. Among other sweeping provisions, the bill mandates age estimation for all Minnesota account holders, requires verifiable parental consent before any minor aged 15 or younger can create or maintain an account, bans an overbroad set of features the bill characterizes as “addictive,” and creates a sweeping private right of action with statutory damages of $10,000 per knowing or reckless violation.
NetChoice respectfully asks that you oppose the legislation as it:
- Fails to protect a single citizen from harm
- Puts minors’s sensitive data at risk
- Violates the 1st Amendment of the US Constitution
We share the sponsor’s genuine concern for the wellbeing of Minnesota’s children online. NetChoice members have taken teen safety seriously and in recent years have introduced numerous new features, parental control tools, and platform-level protections to better empower families. We welcome continued dialogue with the Legislature on these issues. However, effective child safety policy must be narrowly tailored, technically feasible, and constitutionally sound. HF 4138 falls short on all three counts.
HF 4138 Puts Minors’ Sensitive Data at Risk
This bill is ostensibly designed to protect children, but its age estimation and parental consent mandates would, in practice, require platforms to collect far more sensitive information about Minnesota users — including children — than they collect today.
The bill’s age estimation requirement in Subdivision 2 creates a cascading set of algorithmic obligations. Once an account holder accumulates 25 hours of use within a six-month period, a covered platform has 14 days to estimate the user’s age with 80% confidence. At 50 hours, that confidence threshold rises to 90%. Platforms must then update their estimates after every additional 100 hours of use — or whenever they apply any data analytics or AI to update any other demographic characteristic of a user, whichever comes first. This last provision is particularly significant: it effectively mandates near-continuous demographic profiling of all Minnesota account holders, the very outcome child privacy advocates seek to prevent.
To meet these confidence thresholds, platforms will face strong incentives to collect and retain the kinds of identifying data — device fingerprints, behavioral signals, and ultimately government-issued identification — that can be used to estimate age with the required statistical precision. The bill’s verifiable parental consent requirement, incorporating the COPPA standard under 15 U.S.C. § 6501(9) and 16 C.F.R. § 312.5, compounds this problem. Obtaining verifiable parental consent at scale will require platforms to collect, store, and process sensitive identity documentation from both minors and their parents. Large-scale mandatory collection of highly sensitive personal and governmental identification data dramatically increases the risk that this information will be captured in data breaches or misused by bad actors — the very harms Minnesota families most fear.
In short, the bill would mandate the creation of detailed identity dossiers on Minnesota families in the name of child safety.
HF 4138 Violates the 1st Amendment of the US Constitution- At Least Twice Over
This bill presents at least two independent First Amendment violations. First, it infringes on the rights of users to receive protected expression without first having their age “estimated” by the platform and, if determined to be a minor, securing parental consent. Second, it infringes on the rights of platforms to disseminate their own “distinctive expressive offering” to users without engaging in invasive age estimation and verification processes.
Age Estimation, Verification, and Parental Consent Requirements Are Unconstitutional
Restrictions on the access to and enjoyment of speech are rarely permitted. Indeed, restrictions are permitted only for certain categories of speech, and the Court has been careful to articulate such categories as obscenity, incitement, true threats, and fighting words. But the government cannot create new categories of unprotected speech to solve some perceived social harm. Brown, 564 U.S. at 792. And, as Packingham recognized, social media is home to troves of protected, valuable speech. 582 U.S. at 105.
When the government has attempted to restrict access to speech through requirements for speakers to “determine” or “verify” the age of audience members, the Supreme Court routinely struck them down. Such restrictions impermissibly chill speech by dissuading otherwise willing speakers and listeners from participating. The government may not impose barriers as a precondition to speak or receive the speech of others. See Reno v. ACLU, 521 U.S. 844, 855-857 (1997); Ashcroft v. ACLU, 542 U.S. 656 (2004). Similarly, the Supreme Court also invalidated parental consent requirements to access lawful speech. Brown, 564 U.S. 786 (2011).
While HF 4138 does not purport to prevent access to social media websites outright, it does restrict access to the website’s “distinctive expressive offering.” Moody v. NetChoice, 603 U.S. at 738. That offering is protected expression, and the government may not prevent access to that offering any more than it could dictate how the New York Times or Wall Street Journal arrange articles in their newspapers.
Restrictions on Dissemination of Lawful Speech are Unconstitutional
Distinct from the First Amendment injury HF 4138 inflicts on the viewers, readers, and users of social media websites, the law inflicts a separate injury on websites because it prevents them from freely offering their own “distinctive expressive offering.”
The bill would make it unlawful for social media websites to offer content that is “recommended, selected, or prioritized” to users without either determining the user is an adult or obtaining parental consent for minors. This restriction prevents the exercise of editorial discretion. The judgment about what content to display “rest[s] on a set of beliefs about which messages are appropriate” to prioritize and display to users is expressive. And the government does not have the authority to alter those decisions merely because it believes it would make better choices. Id. at 738.
The Supreme Court’s decision last term in NetChoice emphatically held that the personalized feeds available on social media websites like Facebook and YouTube are protected expression under the First Amendment. Because HF 4138 would prevent the exercise of editorial discretion by prohibiting the use of these personalized feeds, it is unconstitutional.
HB 4138 Private Right of Action Invites Costly, Abusive Litigation
Beyond its constitutional and privacy deficiencies, the bill’s enforcement mechanism in Subdivision 8 will generate substantial harm of its own.
The bill creates a private right of action available to any child or parent for declaratory relief, injunctive relief, general and special damages, attorney fees — and, critically, $10,000 in statutory damages per knowing or reckless violation. It also provides for punitive damages where a “consistent pattern” of reckless or knowing conduct is established. The statute of limitations is tolled until the child turns 18, meaning platforms face liability exposure lasting years or even decades after the alleged conduct.
This combination of provisions will invite opportunistic litigation untethered from any demonstrated harm to specific children. The bill’s novel age estimation requirements — built around concepts like “80% confidence” and “reasonable means and reasonable efforts” — are technically complex and inherently ambiguous. Courts and juries will be asked to adjudicate difficult algorithmic and engineering questions without clear legislative standards to guide them. Rather than incentivizing better outcomes for children, this litigation mechanism will incentivize platforms to over-collect and over-retain user data in order to defend against lawsuits, further undermining the very privacy interests the bill purports to advance.
The Legislature should, at minimum, strip the private right of action from this bill and rely instead on targeted, consistent, and expert-informed enforcement by the Attorney General under Section 8.31 — authority the bill already provides.
* * * * *
NetChoice and its members are committed to making the internet safer for Minnesota children. We have supported parental control tools, time management features, digital literacy initiatives, and industry-led protections designed to keep young users safe. We recognize that more can and should be done, and we genuinely welcome the Legislature’s continued engagement on this issue.
But good intentions do not insulate legislation from constitutional scrutiny. Because Section HF 4138 would compromise the data security of Minnesota families, restrict constitutionally protected speech and editorial judgment, and unleash a wave of litigation that would harm rather than help the children it claims to protect, we respectfully urge the committee to oppose the bill as written.
We offer ourselves as a resource to discuss any of these concerns in greater detail and appreciate the opportunity to present our views on this important matter. Thank you again for the opportunity to provide the committee with our thoughts on this important matter.
Sincerely,
Amy Bos
Vice President of Government Affairs