Protecting kids online a top priority for state lawmakers

What’s ahead in state capitals could rest on the outcome in federal courtrooms in Arkansas and California.
This combination of 2017-2022 photos shows the logos of Facebook, YouTube, TikTok and Snapchat on mobile devices. (AP Photo, File)

Growing alarm over social media harms and the online privacy of youth has fueled a bonanza of state legislation aimed at setting new rules of the road for how tech companies interact with users under 18.

But the effort has drawn fierce opposition from the tech industry and triggered lawsuits that will test whether state lawmakers are on solid legal ground or need to adjust course in their quest to make the internet safer for children.

If the new laws withstand legal challenge, it could embolden legislators in additional states in 2024. Conversely, if the tech industry secures early court victories, it could squelch further state legislation.

The lawsuits — brought by NetChoice, a libertarian-oriented trade association — challenge the constitutionality of both red- and blue-state laws that regulate how youth engage with online platforms.

“They’re all different flavors of the same bad sauce,” said Carl Szabo, NetChoice’s vice president and general counsel.

In NetChoice v. Bonta, the tech industry seeks to overturn California’s Age-Appropriate Design Code Act, a first-in-the-nation law modeled after regulations in the United Kingdom. The law, which passed in 2022 and is set to take effect next year, requires that online products and services that are likely to be accessed by youth be designed with the “best interests of children” in mind. The lawsuit alleges that the law violates the First Amendment.

In the second lawsuit, NetChoice v. Griffin, the industry argues that a new Arkansas law, the Social Media Safety Act, which requires parental permission for teens to have a social media account, also runs afoul of the First Amendment. The law passed this year and is scheduled to take effect Sept. 1.

NetChoice is seeking injunctions to stop both laws from taking effect while its lawsuits are pending. At a hearing in the California case last month, U.S. District Court Judge Beth Labson Freeman appeared sympathetic to NetChoice’s arguments that the law regulates online content.

“We are all going to be watching Bugs Bunny and we are not going to be getting anything else; that’s how I see this,” Freeman said.

If either or both injunctions are granted, it would serve as a caution flag for state lawmakers across the country who are considering similar laws.

“The major public policy impact [of the lawsuits] is the message it sends to other states,” said Jess Miers, legal advocacy counsel with Chamber of Progress, a center-left tech industry group that backs NetChoice’s motion for injunction in the California case.

State lawmakers generally took one of two paths this year when it came to regulating online spaces.

In Republican-led states, such as Arkansas, requiring age verification and parental permission for kids to have social media accounts emerged as the preferred approach in 2023.

Parental permission laws were also passed in Louisiana, Ohio and Utah. Texas lawmakers approved a law that requires digital service providers to register the age of users and restricts how companies interact with those under 18.

In Democratic-led states, a coalition of youth advocates led a coordinated effort this year to try to export California’s AADC law. Bills were introduced in Maryland, Minnesota, Nevada and New Mexico. Legacy media companies joined the tech industry in opposing the bills, none of which passed. Elements of the AADC, including stricter privacy protections and prohibitions on addictive features, were adopted in Connecticut, Florida and Utah.

The two divergent approaches — parental permission and design standards — reveal a schism in how state lawmakers are writing new rules of the road for internet companies.

Supporters of parental permission laws — such as Utah Gov. Spencer Cox (R), who has emerged as a vocal critic of social media companies — say it is about empowering parents.

“We do believe parents should be raising their kids and not social media, and that is what is happening right now,” Cox said at a recent news conference to announce a new public awareness campaign about the harms of social media.

Backers of California’s AADC say the onus should be on the companies to make their online products safer.

“Instead of trying to impose responsibility on parents … [we should] be thinking about how we can impose specific, concrete obligations on what the companies are doing,” said Irene Ly, tech policy counsel at Common Sense Media.

Utah lawmakers this year borrowed from both approaches. They paired their parental permission law with a second measure that bars social media companies from deploying addictive design features and allows parents to bring lawsuits against companies for alleged harms.

Cox and Utah Attorney General Sean Reyes (R) have also threatened state lawsuits against social media companies. Last month, the pair went to court to force TikTok to fully respond to subpoenas the state issued in February and May.

Indiana Attorney General Todd Rokita (R) sued TikTok in December, and school districts around the country are suing multiple social media companies, all alleging the platforms have contributed to mental health and behavior issues among students.

While most state legislative sessions have adjourned for the year, social media regulation remains in play in California where lawmakers are considering a bill that would hold social media companies responsible for exposing youth under 16 to certain harmful content.

“I want social media companies to take responsibility. I want to hold them accountable for the harm that they’re causing for our youth,” state Sen. Nancy Skinner (D), the author of the bill, recently told the Los Angeles Times.

New Jersey Gov. Phil Murphy (D) signed legislation last month creating a 19-member commission to study and issue a report on the effects of social media on youth.

“By establishing this commission, we will better understand how social media use — both in and out of school — is affecting the physical and mental health, safety and academic performance of students to help mitigate any negative repercussions and protect the well-being of New Jersey’s youth,” Murphy said in a statement announcing the bill signing.

The state-level effort to erect new guardrails to protect kids online emerged in the face of inaction by Congress. In recent weeks, the fight has shifted back to Capitol Hill as a pair of bills in the U.S. Senate — the Kids Online Safety Act and the Children and Teens’ Online Privacy Protection Act — have advanced out of committee.

But state lawmakers are not holding their breath that Congress will act, and some are already teeing up legislation for next year. Georgia Lt. Gov. Burt Jones (R) and Sen. Jason Anavitarte (R) recently announced they will pursue a social media parental permission law like Louisiana’s for the 2024 session.

“It’s important that we empower parents,” Anavitarte said at a news conference announcing the planned legislation. “A lot of parents don’t know how to restrict content.”

The coalition behind the effort to pass California’s AADC law in other states is also looking ahead to next year as it watches to see how the NetChoice lawsuit plays out.

“This is not a content moderation law, so we are confident that it can survive First Amendment scrutiny,” said Meetali Jain, an attorney who supported the coalition’s efforts this year. “To the extent that there are concerns that are persuasive, we are willing to optimize the law.”

NetChoice’s Szabo said lawmakers should reject both approaches and instead follow the lead of Florida and Virginia, where laws were passed this year to require internet and social media safety be taught in schools. The conservative American Legislative Exchange Council has also drafted model legislation on the topic.

“The outcome of our lawsuits [is] going to show that the California or Arkansas or Utah approach isn’t going to work, and states can either try to bang their head against the wall or they can follow in the footsteps of Virginia and Florida, and start using education as a tool to empower adolescents and parents to become good digital citizens,” Szabo said.