Youth digital privacy battles spark in states

The tech industry wants to halt a youth digital privacy law in California from spreading to other states, in the absence of federal action.
This combination of 2017-2022 photos shows the logos of Facebook, YouTube, TikTok and Snapchat on mobile devices. (AP Photo, File)

A coordinated push to replicate California’s first-in-the-nation youth digital privacy law is encountering fierce opposition from the tech industry, which has made stopping bills in other states a top priority.

Maryland and Minnesota are the primary battlegrounds over so-called age-appropriate design legislation, a version of which was also briefly considered in New Mexico. A children’s privacy measure that borrows elements from the California law was introduced in New York. A related bill is likely coming to Nevada next. 

The campaign to export California’s law to other states — and the lobbying effort to keep that from happening — comes as the tech industry faces growing scrutiny over how it engages with younger users and as lawmakers increasingly look for ways to regulate the industry in the absence of federal action.

“This is the kind of bill that actually changes the trajectory of the industry,” said Nicole Gill, co-founder and executive director of Accountable Tech, one of the groups behind the state-level effort. “It will upend the way they operate, the status quo.”

The state-by-state fight pitting a coalition of youth privacy backers against multiple tech industry groups has sparked muscular rhetoric from both sides.

“This is an absolute virus spreading across the country … to create new rules on how Americans and their families engage online,” Carl Szabo, vice president and general counsel of NetChoice, a right-of-center trade group, said in an interview. NetChoice’s members include Google, Meta, TikTok and Twitter.

“None of us should be even remotely intimidated by the threats of multi-million-dollar bullies whose money cannot be allowed to hold sway with our elected government officials,” Maryland Sen. Benjamin Kramer (D) said at a recent public hearing. Kramer is the prime sponsor of the Senate’s age-appropriate design bill, which has a companion measure in the House.

Under the bills in Maryland and elsewhere, companies whose online products or services are likely to be accessed by someone under 18 would have to adopt design standards aimed at protecting younger users. That includes configuring default privacy settings to their highest level and disabling design features that could harm a young person’s physical or mental well-being. The law would also restrict the collection and sale of child user data and require companies to conduct systematic surveys to assess their products’ risks to children.

The Maryland measures would apply to companies that have annual gross revenues of more than $25 million, that buy or sell the personal information of 50,000 or more consumers a year, or that derive at least 50% of their annual revenues from selling consumer data. Intentional violations of the law would bring a $7,500 fine per affected child. 

The Maryland, Minnesota and New Mexico bills were modeled on California’s age-appropriate design law, which passed unanimously last year. It was inspired by a set of regulations in the United Kingdom that took effect in 2020, establishing 15 standards that online companies must comply with to protect younger users.

Supporters say the UK standards have resulted in positive changes such as Google defaulting to SafeSearch for younger users and TikTok shutting off push notifications for teen users during nighttime hours.

The London-based group 5Rights, founded by Beeban Kidron, a member of the House of Lords who introduced an amendment that led to the UK’s age-appropriate design rules, played a key role in passage of the California law last year. This year it is behind the effort to export the law to more states and has authored model bill language. 

“We know this model works,” Nichole Rocha, head of U.S. Affairs for 5Rights, said at the Maryland Senate hearing.

Besides 5Rights and Accountable Tech, the coalition backing the age-appropriate design bills also includes Parents Together and Design It For Us. Advocates insist the law is needed to better protect children from harmful online content and to block features like Autoplay that encourage youth to spend hours online. 

Opponents say the legal and enforcement regime in the UK is different than in the U.S. and that the California law is more draconian.

The tech industry — facing potential significant disruption to its business model —  is intent on blocking California’s law from being replicated, leading to a lobbying blitz.

“It’s certainly not a fair fight,” said Gill of Accountable Tech, noting the industry’s ample resources.

In addition to NetChoice, groups including Chamber of Progress, TechNet, the State Privacy and Security Coalition, the Computer and Communications Industry Association and the Digital Advertising Alliance comprise the opposition front. The industry says that while the goal of protecting young people online is laudable, the age-appropriate design bills are vague, unwieldy and likely unconstitutional.

“I describe it as akin to having King Charles coming in and telling me how to raise my kids,” Szabo of NetChoice said. 

One of the chief criticisms is that companies will have to either treat all users as kids or engage in a process of age verification that will require them to collect more, not less, consumer data. Supporters dismiss this as fear-mongering and say the companies already know how old their users are.

The tech industry also maintains that age-appropriate design requirements will force companies to censor content and make it harder for teenagers, especially marginalized ones, to access online information.

“While these bills raise serious issues around children’s mental health and their well-being online, we are concerned they could lead to unintended consequences that put kids’ privacy at greater risk and eliminate or limit access to online safe spaces and resources for children across the country,” David Edmonson, TechNet’s vice president of state policy and government relations, said in a statement to Pluribus News. 

TechNet’s members include Google, Meta and Snap Inc.

Instead of regulation, tech groups say more education is needed around safe internet practices. They also note that platforms are voluntarily deploying protective features for kids along with more parental controls. 

Maryland Del. Lorig Charkoudian (D), who sits on the House committee considering age-appropriate design legislation, finds that argument unpersuasive. 

“It is offensive and irresponsible when the tech companies show up and tell us this is for parents to figure out on their own,” Charkoudian said.

In its statement to Pluribus News, TechNet called for a federal digital privacy law to avoid a state “patchwork” of laws. 

The tech industry has warned state lawmakers that they are inviting litigation if they pass the age-appropriate design bills. NetChoice sued California in December, calling its law “a clumsy attempt to regulate online speech that threatens children’s privacy and safety, steamrolls the First Amendment, and conflicts with federal law.”

“This is a slam dunk case for us,” Szabo said. 

The author of California’s law, Assemblymember Buffy Wicks (D), has pushed back on the idea that age-appropriate design is a content moderation law in disguise.

“We feel really strongly that this bill is really about the product design and not the content that kids are receiving,” Wicks said in a recent podcast interview. “I’m not surprised by the lawsuit, it’s a tech industry trade association group that doesn’t want to be regulated.”

Current federal law, known as the Children’s Online Privacy Protection Act, only applies to children under 13. In its lawsuit, NetChoice argues that California’s law, which takes effect next year, is preempted by COPPA. 

Opponents have already chalked up one win this year. The New Mexico age-appropriate design bill stalled after making it through one committee with unanimous support but failing to get a hearing in a second. Sponsors intend to work on the issue over the legislative interim.

The Minnesota House bill and a companion measure just introduced in the Senate are still alive, as is the pair of bills in Maryland. Charkoudian, the Maryland delegate, said reports about the state of teen mental health, especially for girls, are galvanizing lawmakers in her state.

“There is definitely momentum among my colleagues to do something about this,” Charkoudian said.