California proposes bipartisan roadmap to protect kids online, even as big tech fights back

Sarah SmithMarch 8, 2023

In California, a Democrat and a Republican figured out how to pass the nation’s toughest online privacy law to protect children. However, if their experience is that federal lawmakers can expect stiff opposition from big tech companies if they heed President Joe Biden’s call for similar action nationwide.

The law, modeled after United Kingdom law, prohibits websites from profiling users under the age of 18 in California, tracking their location, or soliciting them to provide personal information. It will also require online services to automatically set privacy settings to the highest levels on sites children have access to when the law goes into effect next year.

Passed with unanimous bipartisan support, the measure is a roadmap for federal lawmakers to stop social media companies from targeting children. But the tech industry’s response, including a recent lawsuit that describes the law as having global implications, demonstrates just how hard its powerful lobby will work to undermine or weaken regulation.

“Big tech isn’t afraid to show off, that’s for sure,” said Jordan Cunningham, a former Republican California Assemblyman who co-sponsored the bill. “That’s true for both DC and Sacramento.”

Gov. Gavin Newsom signed into law a law last year that imposes severe restrictions on online services used by children. Some privacy experts believe that its greatest scope lies in the requirement that online services take into account what is best and safest for children from the outset, meaning that companies will have to design their websites around privacy rules to protect users. .

“The privacy part really deserves attention,” said Jennifer King, a research fellow in privacy policy and data at the Institute for Human-Centered Intelligence, Stanford University. “Essentially, it says, ‘You can’t collect data on children under 18, and you should take that into account when designing your product.’

This is exactly the regulation that online services want to avoid. Three months after Newsom signed the bill into law, the wealthy tech industry responded in December with a federal lawsuit to block the law from going into effect on July 1, 2024.

One of the most powerful trade associations in the industry, NetChoice, claims in part that the law violates free speech provisions of the US Constitution. The association includes such giants as Google, Meta (which owns Facebook and Instagram), TikTok and Twitter.

Biden, in his Feb. 7 address to Congress, asked Congress to “pass bipartisan legislation to prevent Big Tech from collecting personal data about children and teens online” and to prevent targeted advertising to children.

“We must finally hold social media accountable for the experiment they are doing on our children for profit,” Biden said.

Numerous studies have shown that targeted advertising and pushing for certain online content can harm children’s well-being, and a 2021 report found that Facebook’s own study found that almost a third of teenage girls felt worse about their bodies after using Instagram.

In California, Cunningham and Democrat Buffy Weeks overcame the fierce opposition of an industry that wields immense power in Sacramento by turning to their colleagues not only as legislators but as parents. The measure received strong support from the international 5Rights Foundation, which pushed for it after it helped create the law in the UK, and from Facebook whistleblower Francis Haugen, whose testimony before Congress in 2021 prompted a new investigation into the giant’s privacy practices. social networks.

“All of us Democrats and Republicans have a lot in common to come together and say, ‘OK, what really happens to our kids when they’re online?'” said Weekes, who has two young children. “In political terms, this bill can serve as a model, especially in its bipartisan nature.”

Last year, the couple devised an aggressive strategy to fend off the industry by drafting two bills that tried to hold social media companies accountable in different ways. Big Tech has successfully blocked one bill that would have allowed state prosecutors to sue companies that knowingly addicted minors to drug addiction.

“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 dropping out for re-election last fall.

This left legislators with the option to approve another measure, AB 2273, known as the California Age Appropriate Design Code, with little resistance. This measure prohibits online services from creating features on their websites that could harm children.

And its requirement that online services build protections into their sites, such as default privacy settings for children, is an “existential threat” to the tech industry, which profits enormously from its ability to collect and track user data regardless of their age, Cunningham. said.

In its lawsuit, filed in the U.S. District Court for the Northern District of California in San Jose, NetChoice calls the case an unfair restriction on free speech guarantees. The association also claims that all users will have to submit much more personal data to online services in order to verify who is under the age of 18.

Weeks called the claim “chilling”, noting that many sites are already using algorithms that estimate age with uncanny accuracy, and said she is “cautiously optimistic” that the law will survive legal scrutiny as it focuses on product safety. not freedom of speech. California Attorney General Rob Bonta’s spokesperson Joanne Adams told KHN that Bonta’s office will defend “this important child safety law in court.”

Newsom also made an impact last month after the industry filed a motion on Feb. 17 to block the law from going into effect this summer while the NetChoice lawsuit is pending. In a statement, the father-of-four said no other state is doing more than California to protect children.

In fact, some legislators want to go further. In February, state senator Nancy Skinner introduced a bill that would ban social media companies from using algorithms or other technical features that target content to children that could induce them to buy fentanyl, harm themselves or others, go on dangerous diets, or take their own lives.

NetChoice association adviser Chris Marchese said the industry supports national regulation, not government action. “We just don’t support a patchwork of state laws, some of which will be very different from others,” Marchese said.

Industry critics say it’s because Big Tech wants D.C. lawmakers to pass industry-friendly legislation. In 2022, the top five tech companies together spent nearly $69 million lobbying the federal government, according to public documents. That’s more than the pharmaceutical or oil and gas industries have spent, according to Bloomberg News.

This year, lawmakers have proposed bills to remove federal protection from online services that don’t do more to protect children, but it’s unclear if they’ll work better than past attempts. At a hearing in February, Senate Judiciary Committee Chairman Dick Durbin (D-Illinois) accused Facebook, Snapchat and other social networks of “going out of their way to keep our kids’ eyes glued to screens.”

If Congress does pass the federal rules, California leaders hope they don’t repeal or weaken their state’s laws.

“We see this as the next turning point in technology, [but] we have to do it right,” Cunningham said. “In 20 years, public health professionals will look back and say, ‘Dude, we just let these companies do the biggest social experiment on kids.’ How did they get away with it?”

This story was produced by KHN, which publishes California Healthline, an editorially independent service of the California Health Foundation.

KHN (Kaiser Health News) is a national news service that produces in-depth journalism on health issues. Together with Policy Analysis and Polling, KHN is one of the three main operating programs of the KFF (Kaiser Family Foundation). KFF is a charitable non-profit organization providing health information to the nation.