Policymakers are looking at ways to protect kids from social media

By Mark Brodie
Published: Tuesday, February 20, 2024 - 10:47am

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State lawmakers across the country, including some in Arizona, are looking at ways to protect kids from the impacts of social media.

The Florida Legislature, for example, is considering a bill that would ban kids younger than 16 from using social media platforms with addictive features — regardless of whether their parents say it’s OK. Lawmakers in states including Utah, California and Arkansas have also crafted measures on this topic — some of which have been challenged in court.

A federal judge recently blocked a law in Ohio that would have required social media platforms to get a parent’s OK before their teen could open a new account. Last year, a federal judge blocked a California law called the Age Appropriate Design Code Act, which has led states to look for different approaches.

Danny Weiss, chief advocacy officer at Common Sense Media, joined The Show to talk more about what some of those approaches look like. 

Full interview

Broadly speaking, are there different sort of umbrella approaches states are taking in terms of trying to regulate social media usage for residents under 18?

DANNY WEISS: Yeah, there are a number of different approaches that states are taking. Some of this has been in the works for the last couple of years, and it's just going forward even further in 2024. So I would break them down into a few categories.

One of them is known as the age appropriate design. That is asking for technology to be designed with kids and teens in mind. California passed that into law in 2022, and then the technology companies sued, and that is currently being reviewed in court.

Another approach is more, what I would say is protectionist, where for instance, in places like Utah and Arkansas, they, the laws that were passed there says the technology is really not appropriate for kids and teens up to a certain age, and it puts parents in control of deciding whether or not teens under 16 would be allowed on social media and would ban altogether teens under 13 from being on social media. The law in Arkansas has also been attacked by the technology companies, has been sued and is currently on hold, and I believe there's a lawsuit pending in Utah.

There's another approach, which is, that says that technology companies design their products in such a way to engage kids so intensely and drive them in such unintended and negative directions that those companies should be held liable for the way they design their products. Not for the content, but for the way that the platforms are designed.

There's just one last example I would give you of an approach is with regard to privacy. Enhancing data privacy protection for young people online is really the first line of defense, in terms of mitigating harms from social media, because the less data that you store, collect, share and sell about kids, the less valuable the algorithms will be.

So you mentioned some of the legal action in terms of Arkansas and Utah and California, and a judge has already ruled that California's law violates the First Amendment. So I'm wondering if states are looking at some of these lawsuits and the approaches that have led to them and are trying to maybe find workarounds or, or take a different approach that that might be OK by the courts?

WEISS: You're exactly right about that. The the First Amendment in the United States, compared with speech laws in places like the United Kingdom and the European Union, both of which the UK and the EU have been very active in these spaces, but they don't have the American Constitution and the American First Amendment. So the point of view that the companies take, which we disagree with, is that everything that they do on their platforms is free speech. Not just their ability to say something, but the algorithm, they are arguing, is a First Amendment protected action. This is an issue that is going to end up at the Supreme Court in one form or another.

So what some people are trying to do is to target legislation so that it really gets around content, gets away from content as much as possible and focuses on design and structure. And then you would then have a fight, is design and structure First Amendment or not. Negligence is potentially an excellent avenue for states to pursue.

"So what some people are trying to do is to target legislation so that it really gets around content, gets away from content as much as possible and focuses on design and structure. And then you would then have a fight, is design and structure First Amendment or not. Negligence is potentially an excellent avenue for states to pursue."
— Danny Weiss

Does it seem as though there's any middle ground, any compromise to be had here between policymakers and the tech companies? I mean, you mentioned the lawsuits, those are all brought by tech companies. Like, is there any way to craft some kind of policy that would prevent or try to prevent some of the dangers to kids under 18 from being on social media that the tech companies would be OK with?

WEISS: I think what's happening is, if you asked the tech companies, they would say, of course there is a middle ground, and they would say we support the following things. But then when it comes to an actual bill, almost none of them support an actual bill.

One area that's a little bit different is just as, as people know, there was a recent hearing with the big tech CEOs in Washington. And in that hearing, some of the tech CEOs were asked if they support a federal bill, the Kids Online Safety Act. Snap announced prior to the hearing and at the hearing that they support the Kids Online Safety Act, which would again require companies to design their platforms better. Twitter, now known as X, also said they support the Kids Online Safety Act. And then Meta and Discord and TikTok did not say that they support it. So there could be a little bit of a break in the dam.

But at the state level, there's two trade associations, NetChoice and TechNet, and they basically oppose every regulatory change that is being proposed.

Do you think the fact that there is federal legislation, does that maybe help a little bit? Like, might tech companies, might it even be better for advocates like yourself if there was one federal law as opposed to sort of a, a patchwork of state laws?

WEISS: We strongly support a, a federal approach to this, but we don't want to give up the opportunity for states to be the engines of innovation that they always are. So what our recommendation is is that Congress absolutely should pass a comprehensive data privacy law. The United States is one of the few leading countries in the world that doesn't have one. There should be a comprehensive data privacy law, and there should be a first ever guardrails for kids on social media law.

The issue then becomes, are those federal laws going to be the minimum? Which is true for most consumer protection laws. The federal government establishes a floor, and then states can go above that if they want something stronger. Or is Congress going to establish a ceiling and say in 2024 we're going to pass these laws and no state may take any action that is stronger than what we've done.

So, understanding that crystal balls are often extraordinarily cloudy in this regard. I'm curious, like when you look ahead, you know, for the, you know, the next six to 12 months, like what, what do you think is, is going to happen? Like, what do you think states are going to be able to do? What do you think the Feds are gonna do? Maybe what do you think courts are gonna do?

WEISS: I think you'll see a number of states pass new legislation in 2024. A number of court cases will continue to go forward. There are several that are in process now. You will, I believe you will see at least the United States Senate pass federal legislation and then the pressure will be on the U.S. House of Representatives. So there's going to be a lot of action on this and of course, it's an election year and at some point, the politics around the election will take over and maybe drown out some of this other activity. But for the first, for the rest of this quarter and into the second quarter of 2024, I expect to see quite a bit of activity.

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