State legislatures in blue and red states are taking up measures to protect children on social media, especially because Congress has been unable to agree on solutions and the evidence of harm to young users continues to mount. It's a complicated problem and most of the states' laws are being challenged in court by a trade association and other groups who believe they are unconstitutional.
This is Across the Aisle, a podcast about bipartisanship, by the National Conference of State Legislatures.
I’m Kelley Griffin
Our look at bipartisanship in statehouses starts this time in Congress, where inaction on bills to keep children safe on social media is prompting many states to act.
At a hearing before the Senate Judiciary Committee in January, the audience was filled with families whose children have been harmed or died because of social media. They held up photos of their children for the CEOs of Meta, Snapchat, X, Tik Tok and Discord to see.
During the four-hour hearing, senators blasted the companies for failing to protect kids from dangerous and inappropriate material and sexual predators, and for creating algorithms that they say addict young people.They want to strip the companies of their protection from liability for content on their platforms.The CEOs insist they are working diligently to keep young people safe. They oppose most efforts to regulate them.
The committee has unanimously passed five bills in recent years, none of which have made it to the Senate floor.
But state legislators aren’t waiting for Congress to act. Lawmakers in blue and red states are crafting their own solutions aimed at keeping children safe. Last year, NCSL was tracking xx bills on these issues; this year, it is up to 200 so far. States are trying a range of approaches, And in nearly every case where a bill has been signed into law, the industry is taking states to court, saying their solutions are unconstitutional.
Utah was the first state to pass bills on this last session, and legislators are still refining the measures this session before they go into effect next month.
Senator Mike McKell, a Republican, sponsored one of the bills after growing frustrated that Congress and the tech companies weren’t doing enough.
McKell I've had a chance to meet with parents, I've had a chance to meet with kids, and I'll tell you, it's a problem. Everybody knows it's a problem. I keep hearing from social media companies, they're working to fix the problem, resolve the problem, but that's not my impression.
His bill requires companies to verify the age of minor users and then limit their access and online visibility to friends, unless their parents or guardians change the setting. It would allow parents to access and monitor their kids’ use of the account with new tools. And it would require disabling systems like auto-play and push notifications that are blamed for addicting kids to their social media feeds.
Another bill last session would give parents recourse to sue social media companies if their kids were harmed and a therapist could identify the role social media played. Companies that require parents to approve a minor’s access and take steps to limit kids’ time on their sites could be protected from liability. Both passed with bipartisan support.
An association representing tech companies, NetChoice, has already filed suit against the Utah bills. Carl Szabo is vice president and general counsel for NetChoice. He says just the requirement to verify age and determine who has parental say over a minor is a huge can of worms. Everyone on the platforms would have to give personal information to prove their age.
Szabo: So if I were to try and do a watch a video on YouTube, if I were to go onto X, if I were to use Instagram, if I visit Reddit or any of these services, they would have to collect massive amounts of personal information to verify that I am who I say that I am, and I am of the age that I say that I am.
Senator McKell says he thinks revisions this session will give the bills a good chance in court.
McKell: I'm optimistic with our litigation here in Utah, but there are parts that may get struck down and that's okay. I have confidence we're going to get this right because the harm is too significant. And I don't think that lawmakers, policymakers, moms and dads, community leaders are going to stand by and tolerate it and look, if we don't get it right now, we will find a way to get it right.
In Minnesota, Representative Kristin Bahner is taking a different tack. She’s a Democrat who is drawing on her 30 years experience as an IT engineer to craft a bill that requires platforms to use what’s called “age appropriate design”.
Bahner : You've seen YouTube make some changes to the addictive nature of their continuous scrolling content for children to give them a break and a timeout. We've also seen folks like TikTok say this idea that we're allowing 60-year-old men to message 13-year-old girls is probably not super safe or acceptable, so maybe we should no longer allow that type of thing unless it's someone that's already in that child circle, a friend or a relative, folks that are closely connected to them.
Bahner believes her bill addresses the issues with age appropriate design bills in other states, and she’s certain software developers can meet the challenge.
Bahner: And do I think that it will be easy? Not necessarily. I mean I think we have to be realistic. There are some challenges around how do we do that in a smart, intelligent way to prevent that harm but also allow access and I think to keep those kiddos safe. And I think we absolutely can do it through design.
Szabo of NetChoice doesn’t agree. He says it still would infringe on First Amendment rights if companies had to put up barriers to information.
Szabo: An unconstitutional law will protect zero children and that's what we're trying to make clear to lawmakers across the country.
NetChoice is the leading opponent to these measures, but not the only one. Other technology advocates, the ACLU and in some cases newspapers have joined lawsuits.
Szabo says NetChoice has a set of recommendations to improve online safety. The one legislative fix they like is to create federal laws on data privacy rather than having 50 solutions in the states. The group says law enforcement should be better funded to go after child sexual abusers who operate online. Parents should be educated about existing tools they can use and schools should add digital literacy and safety to the curriculum. Szabo emphasizes there is plenty of good that comes from technology.
Szabo: “But to say, because there's bad stuff, we’ll eliminate all the good is literally throwing the baby out with the bath water. “
And he says parents have the primary role in helping their children navigate technology
Szabo: I will tell you that every time a kid cries and a parent hands them an iPad, there are repercussions for that. Just in the same way that if I left my kids at the house alone by themselves with a bag of Oreos and came home and was surprised they ate them all, Same thing's true with these devices. You shouldn't just leave your kids alone. You need to have conversations
That doesn’t go over well with legislators who believe the products themselves are the problem. That parents can’t outsmart algorithms designed to grab and hold children’s attention, without adequate guardrails. They say of course parents have a critical role—but not the only one.
Lawmakers pushing for these regulations in statehouses and Congress note this massive industry currently is protected from any liability, while other common products involving kids - baby food, pajamas, car seats, playground equipment - must meet safety standards.
The scramble to find answers continues. Florida just passed the most restrictive law so far. It blocks anyone under 16 from using social media, even if their parents or guardians approve. That one will wind up in court, if Gov. Ron DeSantis doesn’t veto it first. He has said he wants to answer parent’s concerns without restricting their rights.
Senator McKell of Utah is encouraged by all the wide ranging ideas states are taking up to address complex questions about technologies and rights, and he would be happy if it prompted Congress to come up with a solution at the federal level.
McKell: I hope every state in America runs a bill. And I hope every state in America runs a different bill. I think the laboratories of democracy happen at the state level.I like the approach that attacks it from a whole bunch of different angles, and it's okay. It's okay to see that
I’m Kelley Griffin. Thanks for listening to Across the Aisle. You can follow all the bills states are considering about this issue at our website, ncsl.org