Hey Illinois, Is This Social Media?

Illinois' new social media tax applies to more than you think

I had the good fortune to spend a few days in Alaska last week, and I had better things to do than scroll through social media. But if we go by the expansive definition of social media platforms that Illinois uses for its new social media tax, it turns out I was quite an avid social media user after all.

With a Thursday trip to Lake Clark National Park on the agenda, I watched a YouTube video about the flight I’d be taking. YouTube, unsurprisingly, counts as social media.

Then I decided to go for an evening run in Anchorage, taking advantage of the Tony Knowles Coastal Trail. I kept the pace slow, knowing I had intense hiking ahead, but I still recorded my run on Strava.

Is Strava a service that “permits a person to become a registered user, establish an account, or create a profile” and “primarily serves as a medium for users to interact with content generated by other users of the medium”? I think so. My social media use continues.

When I landed at Port Alsworth on Thursday, I immediately hit the trails, first hiking to Tanalian Falls and then backtracking to summit Tanalian Mountain. Because I have no sense of direction (something my pre-GPS hiking companions will readily attest to), I navigated with AllTrails. Most of the hikes on AllTrails are user-submitted, and you can also share and comment on both hikes and user activities. Even in those remote mountains, I used social media, at least as Illinois defines it.

Back at Port Alsworth, I got on lodge wifi and sent a friend one of my Dall Sheep photos over WhatsApp before jumping in a kayak. You might think that a messaging app isn’t social media, but WhatsApp allows the creation of user accounts and it primarily serves as a medium for users to engage with each others’ content (messages). Under Illinois’ definitions, I was already back on social media.

I flew back to Anchorage that night and took the redeye home to D.C. But when I got back, I naturally had to post a photo on Instagram, which is clearly social media. (I use Instagram exclusively for hiking photos, making me a rather asocial user of this particular social media platform.)

No one will deny that YouTube and Instagram are social media, but Strava, AllTrails, and WhatsApp might come as a surprise. Illinois’ definition is also broad enough to potentially capture GitHub, Yelp, Hinge, Nextdoor, Slack, Telegram, Goodreads, Google Groups, Indeed, and much more.

Including Substack, where you’re reading this.

The expansive definition of social media is only one of many problems with Illinois’ new social media tax. It lacks any definition of users or accounts, raising the possibility that the same person could count as multiple users. It says nothing about what constitutes an Illinois user. I flew back through Minnesota, but if on a future flight I connect through O’Hare, would I be an Illinois social media user that month?

If companies get any of this wrong, they could be subject to exorbitant penalties, compounding at 100 percent per month. As I wrote previously:

The new law is silent on all these questions, and many others besides. What it’s not silent about: prohibiting companies from varying the price to account for the new tax, which raises important legal questions. Indeed, the tax implicates more Constitutional clauses than it contains pages of text: it invites challenges under the First Amendment, the Commerce Clause, the Due Process Clause, and the Equal Protection Clause.

You can read my original analysis on this ill-conceived, poorly drafted law here.

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