Regulators, States, Private Sector Urge Solution to Child Safety Online
Two federal efforts aimed at protecting children online have stalled as Congress went on a six-week recess without a vote.
WASHINGTON, September 4, 2024 – As states push forward with their own regulations to protect children online, tech companies are increasingly grappling with a fragmented patchwork of laws that vary from one jurisdiction to the next.
States like New York, Utah, and California passed legislation this year to curb social media practices deemed harmful to minors. These bills address issues ranging from children’s data protection to parental consent and age verification on social media platforms. Some even restrict the hours kids can access social media sites or receive notifications.
Former FDA Commissioner Dr. Scott Gottlieb noted on Wednesday that corporate frustrations from navigating varying state laws had reached a tipping point, and businesses were likely to start advocating for a federal framework to ease the burden of state-by-state enforcement.
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Tyler Martinez
“The scale at which we are solving these challenges is daunting,” said Paul Rockwell, vice president of trust and safety for Pinterest, during the Semafor event. “A federal regulation here would really be helpful for everyone. We need policymakers, tech companies, and civil society groups to sit down and take this from conversation to action.”
States Stepping In as Federal Action Stalls
New York Governor Kathy Hochul (D) was among those policymakers taking action at the state level.
In June, she signed into law two major pieces of legislation – one expanding federal privacy protections for kids and a second regulating social media algorithms for users under 18. Both laws are being considered as potential blueprints for other states to follow.
The SAFE for Kids Act, making New York the first state to pass a law that regulates social media algorithms, requires companies to display content chronologically as the default setting for kids under 18, rather than using algorithms to dictate social media feeds.
This move was part of New York's broader effort to address mental health challenges among young people, an issue Hochul became more attuned to after a tour across the state where she heard firsthand about teenagers in distress.
“Every day that goes by where the children of my state are not being protected, I feel I have to do something,” Hochul said. “The negative effects of this on the psychology and mental health of our young people cannot be disputed.”
When asked if the current patchwork of state-by-state regulations was the best approach, Hochul responded firmly: “No. There should be a federal solution. But sometimes, waiting for a Republican House, a Democratic Senate, and President to get together is perhaps asking too much.”
Similar to policies being pushed by Republican-led legislatures in Utah and Virginia, Hochul suggested she might pursue a statewide phone ban in schools.
California was the latest state to restrict mobile phone use during school hours with the Phone-Free School Act on August 14. At least five other states, including Florida, Indiana, Louisiana, South Carolina, and Ohio, have similar laws in place.
Legal Challenges to State Laws
Despite these efforts, similar state laws across the country have often faced legal challenges.
Utah was the first state to pass laws strictly limiting minors’ use of social media in 2023. However, these laws were quickly challenged in two suits: one brought by social media users and another brought by NetChoice, a trade association representing internet companies.
NetChoice is the lead plaintiff in five or six different states across the country on very similar issues.
“We do this to stand up for free expression," NetChoice Vice President and General Counsel Carl Szabo has said. “When it comes to the First Amendment, there is no age restriction.”
In the face of these lawsuits and after similar laws in Arkansas and Ohio were enjoined as unconstitutional, Utah passed two new bills in March, which repealed the existing Social Media Regulation Act and revised some obligations. The Utah laws are set to go into effect October 1.
The FTC’s Role in Child Protection
While states take action, federal regulators are also stepping up. Sam Levine, Director of Consumer Protection at the Federal Trade Commission (FTC), joined the call for a national solution to protect children online.
In December 2023, the FTC secured the largest children’s privacy enforcement action in its history against Epic Games, the developer of Fortnite. The company was hit with a $275 million penalty, along with a $200 million judgment for unauthorized charges incurred by minors. As a result, Epic was ordered to overhaul its default privacy settings to better safeguard young users.
In another case, the FTC took action against NGL, an anonymous messaging app accused of enabling cyberbullying among high school students. The FTC alleged that the app contributed to harmful behavior by encouraging users to send harassing messages to their peers.
Most recently, the FTC intervened in a lawsuit involving a group of California families who sued Google for alleged privacy violations against children, Levine said.
The FDA’s Role in Protecting Kids Online
The Food and Drug Administration (FDA) has also played a part in protecting children online. Last year, the FDA worked with stakeholders to develop a "Bill of Rights" for children’s online privacy, which laid out proposed standards that companies could adopt.
“While progress has been made, it wasn’t easy to get these companies to the table,” Dr. Gottlieb explained. “But we succeeded in establishing uniform standards to protect kids online.”
A Call for Action
Whether through voluntary industry standards or comprehensive federal legislation, the pressure to protect children from the dangers of social media and online platforms is mounting.
The U.S. Senate made a significant move by overwhelmingly passing the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) and the Kids Online Safety Act (KOSA) in July 2024.
However, the future of these bills, now in the hands of the House of Representatives, remained uncertain as the bills were not brought to the floor for a vote prior to Congress going on a six-week recess.
