LOUISVILLE, Ky. – A Minnesota lawmaker who’s led a two-year fight to pass kids online safety legislation is set to try again next year in the face of sustained industry opposition.
Rep. Kristin Bahner (D) said legislators in at least a half-dozen more states could also sponsor versions of the bill next year, as pressure builds to reset the relationship between kids and social media.
“The coalition is growing by leaps and bounds, which is very promising,” Bahner said in an interview here at the National Conference of State Legislatures’s annual legislative summit.
The campaign to pass Kids Code laws in multiple states is spearheaded by a coalition of youth and parent advocacy groups that espouses a “safety by design” approach to building online products that kids are likely to encounter. Members of the coalition include Common Sense Media, Design It for Us, the Center for Humane Technology and The Student Data Privacy Project.
“It is our hope that strong legislation will be introduced in a number of additional states during the months to come. … We see widespread momentum and determination to act, in spite of the formidable obstacles the industry has created,” the Kids Code Coalition said in a statement.
The Kids Code, which is also known as the Age-Appropriate Design Code, requires social media platforms and other online services that are likely to be used by minors to be designed with their best interests in mind. In practice, that means companies must set privacy settings to their highest levels by default, cannot deploy addictive features, and are prohibited from selling kids’ data.
A Harvard study last year found that in 2022 social media companies earned nearly $11 billion from advertising aimed at minors. A report earlier this year credited United Kingdom regulations with an “unprecedented wave” of design changes to social media and online platforms frequented by kids.
California Assemblymember Buffy Wicks (D) led the passage of the nation’s first Age-Appropriate Design Code law in 2022 with support from the architects of the UK’s 2020 regulations.
Efforts to export the law to other states fell short in 2023. And the California law was subsequently blocked from taking effect by a federal judge sympathetic to the tech industry’s argument that the measure is unconstitutional.
In response to that court challenge, supporters retooled the bill and made another push for passage in a handful of states this year.
The effort paid off in Maryland where lawmakers approved the revised legislation, which Gov. Wes Moore (D) signed into law in May. Elements of the Kids Code bill were also included in a broader Vermont data privacy measure that Gov. Phil Scott (R) vetoed. Kids Code bills were introduced, but did not pass, this year in Hawaii, Illinois, Minnesota, New Mexico and South Carolina.
Bahner, who has a background as an information technology consultant, said she continues to refine the language of her bill “to make it stronger and better to withstand court challenges.”
“First and foremost, the bill is not about content, it is about design,” Bahner said. “I think we’re going to come into the next year even stronger than ever and with more partner states than ever ready to take up the mantle.”
Bahner pointed to the U.S. Senate’s bipartisan vote this month to pass the Kids Online Safety Act, which she said “sends a very strong message” to the tech industry and bolsters the case that it is time for policymakers to act.
The effort to pass Kids Code laws is part of a broader push in both blue and red states to regulate social media platforms amid a drumbeat of alarming statistics about the number of hours teenagers spend online each day and a spike in youth anxiety and depression. Earlier this year, the U.S. surgeon general proposed that social media come with warning labels, much like tobacco products.
Adding to the growing advocacy firestorm are books such as “The Anxious Generation” by New York University social psychologist Jonathan Haidt, which draws a direct connection between social media use and teen anxiety and depression. While the book has generated some pushback from other experts, Haidt’s conclusions and recommendations are propelling talk of phone-free schools.
Industry pushback has been fierce, both in state capitols and in court.
NetChoice, a trade group that represents many of the largest tech companies, has led the legal blitz. Besides California, the group has won injunctions to block social media and online platform regulation laws in Arkansas, Mississippi and Ohio. NetChoice has also sued Utah and, more recently, Texas.
More lawsuits could be in the offing after Florida and New York lawmakers this year passed landmark social media regulation laws.
NetChoice alleges the laws violate the First Amendment, the federal Commerce Clause and Section 230 of the Communications Decency Act, which typically shields online companies from liability for third-party content posted to their platforms.
A federal judge in Utah last month dismissed NetChoice’s Section 230 claim in its lawsuit against Utah’s social media laws.
Utah Rep. Jordan Teuscher (R), who helped lead passage of the social media laws, called the decision “a huge win” and said he is hopeful his state’s efforts to regulate social media companies will survive the legal challenges.
In an interview at the NCSL summit, Teuscher defended the state-led effort to regulate social media companies and predicted that it will eventually lead to a federal law.
“States, as they should be, are these laboratories of democracy; they’re trying different things, trying to push the boundaries,” Teuscher said. “As we figure out what sticks … that will give a path for the federal government to come up with a nationwide solution.”
It is not yet clear if NetChoice intends to sue to overturn Maryland’s Kids Code law. Carl Szabo, NetChoice’s vice president and general counsel, said the new law “will jeopardize the privacy and security of all Marylanders and their children online, while violating their constitutional rights and harming their speech.”
Instead of passing Kids Code laws, Szabo urged states to crack down on child sexual abuse material, fund law enforcement to investigate online crimes, and educate kids about digital safety and security.
“We hope to work with state legislators on these proposals,” Szabo said.