By Mark Kreidler
In California, a Democrat and a Republican figured out how to pass the country’s toughest online privacy law protecting kids. If their experience is any indication, though, federal legislators can expect fierce pushback from Big Tech if they heed President Joe Biden’s call for similar action on a national scale.
The law, modeled after legislation in the United Kingdom, will ban websites from profiling users in California under age 18, tracking their locations, or nudging them to provide personal information. It will also require online services to automatically put privacy settings at their highest levels on sites that kids access when the law goes into effect next year.
Passed with unanimous bipartisan support, the measure presents a road map for federal lawmakers to stop social media companies from targeting kids. But the tech industry’s response, including a recent lawsuit that describes the law as having global ramifications, demonstrates how hard its powerful lobby will work to undermine or dilute regulation.
“Big Tech isn’t afraid to throw its weight around, that’s for sure,” said Jordan Cunningham, a Republican former California Assembly member who co-authored the bill. “That’s true in D.C. and Sacramento alike.”
Gov. Gavin Newsom last year signed the law, which imposes strict guardrails on online services that children use. Its greatest reach, some privacy experts believe, lies in the requirement that online services must consider what’s best and safest for kids from the very start — meaning that companies will have to design their websites based on privacy rules to protect users.
“The privacy piece is truly noteworthy,” said Jennifer King, a privacy and data policy fellow at the Stanford University Institute for Human-Centered Artificial Intelligence. “It basically says, ‘You can’t collect data on kids under 18, and you have to consider that in the design of your product.’”
That’s precisely the sort of regulation online services want to avoid. Three months after Newsom signed the bill, the deep-pocketed tech industry responded with a federal lawsuit in December to block the law from taking effect on July 1, 2024.
One of the industry’s most powerful trade associations, NetChoice, argues, in part, that the law violates free speech provisions of the U.S. Constitution. Members of the association include giants like Google, Meta (which owns Facebook and Instagram), TikTok, and Twitter.
Biden, in his State of the Union address on Feb. 7, asked Congress “to pass bipartisan legislation to stop Big Tech from collecting personal data on kids and teenagers online” and to prevent targeted advertising to children.
“We must finally hold social media companies accountable for the experiment they are running on our children for profit,” Biden said.
Multiple studies have found that targeted ads and pushes toward certain online content can be harmful to kids’ well-being, and a 2021 report found that Facebook’s own research indicated nearly a third of teenage girls felt worse about their bodies after using Instagram.
In California, Cunningham and Democrat Buffy Wicks overcame the fierce opposition of an industry that wields immense power in Sacramento by appealing to their colleagues not just as lawmakers but also as parents. The measure drew strong support from the international 5Rights Foundation, which pushed for its passage after it helped create the U.K. law, and from Facebook whistleblower Frances Haugen, whose testimony before Congress in 2021 sparked renewed scrutiny of the social media giant’s privacy practices.
“There is a lot of common ground for all of us, Democrats and Republicans, to come together and say, ‘OK, what’s really going on with our kids when they’re online?’” said Wicks, who has two young children. “Politically, this bill could serve as a model, especially in its bipartisan nature.”
Last year, the pair crafted an aggressive strategy to fend off the industry, authoring two bills that sought to hold social media companies accountable in different ways. Big Tech successfully blocked one bill, which would have permitted state prosecutors to sue companies that knowingly addict minors.
“We knew they had to oppose a bill that imposes liability, costs, and damages,” said Cunningham, a father of four who served in the Assembly for six years before declining to run for reelection last fall.
That left lawmakers room to approve the other measure, AB 2273, known as the California Age-Appropriate Design Code, with little pushback. The measure forbids online services from designing features on their websites that are harmful to children.
And its requirement that online services build safeguards into their sites, such as the default privacy settings for children, represents “an existential threat” to a tech industry that derives massive profit from its ability to mine and monitor user data regardless of one’s age, Cunningham said.
In its lawsuit, filed in the U.S. District Court for the Northern District of California in San Jose, NetChoice posits the case as one of unfair restriction on free speech guarantees. The association also claims all users will have to turn over far more personal data for online services to verify who is younger than 18.
Wicks called that assertion “fearmongering,” noting that many sites already use algorithms that assess age with uncanny precision, and said she is “cautiously optimistic” the law will withstand a legal challenge because it focuses on product safety and not free speech. California Attorney General Rob Bonta spokesperson Joanne Adams told KHN that Bonta’s office would defend “this important children’s safety law in court.”
Newsom also weighed in last month after the industry filed a motion on Feb. 17 to block the law from taking effect this summer while the NetChoice lawsuit is pending. In his statement, the father of four said that no other state is doing more than California to protect kids.
In fact, some lawmakers want to go further. In February, state Sen. Nancy Skinner introduced a bill that would bar social media companies from using algorithms or other technical features that direct content to children and could prompt them to purchase fentanyl, inflict harm on themselves or others, engage in dangerous diets, or take their own lives.
NetChoice association counsel Chris Marchese said the industry supports national regulation rather than state action. “We just don’t support a patchwork of state laws, some of which will be very different from others,” Marchese said.
Critics of the industry say that’s because Big Tech wants an industry-friendly law from legislators in D.C. In 2022, five of the tech industry’s biggest companies together spent nearly $69 million lobbying the federal government, according to public filings. That’s more than either the pharmaceutical or oil and gas industries spent, Bloomberg News reported.
This year, lawmakers have proposed bills to strip federal protections for online services that don’t do more to protect kids, but it’s unclear if they will fare better than past efforts. At a hearing in February, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) accused Facebook, Snapchat, and other social media companies of “doing everything they can to keep our kids’ eyes glued to the screens.”
If Congress does pass federal rules, California leaders hope they won’t override or weaken laws adopted in their state.
“We can see that this is tech’s next pivot, [but] we’ve got to get this right,” Cunningham said. “In 20 years, people in public health will look back and say, ‘Man, we just let these companies conduct the biggest social experiment ever on children. How did they get away with that?’” (MSM/KHN)