State social media laws run into familiar challenges

New York is exploring how to implement its first-in-the-nation law designed to protect children from addictive social media algorithms with a series of proposed rules open for public comment.

Its  Office of the Attorney General said in September that social media platforms should use age verification technology that is tested and certified annually under the Stop Addictive Feeds Exploitation for Kids Act, known as the SAFE for Kids Act that passed last year. It also would ban social media companies from using data to personalize content a minor sees and would ban notifications from those feeds between midnight and 6 a.m.

It marks the first time a state government has been able to regulate social media feeds for young people, after some efforts have been struck down in court while others have been temporarily halted pending legal action. And it comes as lawmakers at all levels of government remain bedeviled by social media, its effects on young people and a determination to do something about it in law.

But familiar divisions remain about how far to go in regulating social media, with those divisions again laid bare last week at a subcommittee hearing of the House Energy and Commerce Committee, where lawmakers debated various bills. That included the frequently discussed Kids Online Safety Act, known as KOSA, which has once again been amended to remove the “duty of care” provision requiring platforms to “exercise reasonable care” over their minor users.

Rep. Kathy Castor, a Florida Democrat, said during the hearing before the Commerce, Manufacturing and Trade Subcommittee that the new version is a “a gift to Big Tech companies, and they are a slap in the face to the parents, the experts and the advocates, to bipartisan members of Congress who worked long and hard on strong child protection bills.”

Lawmakers and experts also remain reluctant to embrace age verification technology, which has been a hallmark of many state-level bills and is popular abroad, but it has yet to be fully trusted on these shores. Those efforts received a boost earlier this year when the Supreme Court ruled that Texas could require users to verify their ages before visiting adult entertainment websites. But many are worried over the privacy risks.

“Age verification requires robust data collection, making it exceedingly difficult to minimize the sensitive data collected from youth users,” Paul Lekas, executive vice president for global public policy and government affairs at the Software & Information Industry Association, said in written testimony. “Websites or platforms holding a rich array of sensitive data are more attractive targets for malicious actors, dramatically increasing the likelihood that a data breach will harm young people. Requiring technology companies to gather and store that information creates the opportunity for bad actors to attack and access that information.”

The seeming reliance on age verification technology has others worried about the implications of users’ access to the internet and their First Amendment right to view whatever content they choose.

“Lawmakers and tech companies are acting like online ID checks fencing off the internet are the only way forward, when in actuality, this is just another misstep in the current arc of censorship and surveillance on the internet,” Sarah Philips, a campaigner at nonprofit Fight for the Future, said in an email. “As it gets harder and harder to access abortion, gender-affirming healthcare, and so many other life-saving resources, people are turning to an internet that is now increasingly censored and, if lawmakers get their way, behind an age-gate.”

Proponents reject that characterization, however. Rep. Gus Bilirakis, a Florida Republican who chairs the subcommittee and is a sponsor of the new version of KOSA, said it will mean parents are “able to check on their kid’s activities online.”

“Our bills ensure parents have the tools and resources to keep their children safe in the modern world,” he continued. “A child’s life in the 21st century is much more complex than generations past, and parents need the tools to adapt.”

The issue of data privacy also remains a thorny topic for lawmakers. In the absence of comprehensive data privacy legislation from Congress, states have stepped up with their own laws, creating what some have suggested could end up as a patchwork of state privacy laws. Federal legislators said having a federal data privacy standard is one way of preventing harms from social media.

“In the absence of data privacy legislation, companies will continue to collect, process and sell as much of our data – and the data of our kids – as possible,” Rep. Frank Pallone, a New Jersey Democrat who is the ranking member on the House Energy and Commerce Committee, said during his opening statement. “This data allows companies to exploit human psychology and individual preferences to fuel invasive ads and design features – without regard to the harm suffered by those still developing critical thinking and judgment. Artificial intelligence is only accelerating existing incentives, because like social media, AI relies on the exploitation of our data.”