Jennifer Huddleston
On March 5, the House Energy and Commerce Committee held a markup on three youth online safety-related bills. These proposals, the KIDS Act, which includes the Kids Online Safety Act (KOSA), Sammy’s Law, and the App Store Accountability Act, were all reported favorably, although such votes were far from unanimous.
I live-tweeted the full markup if you would like to catch up on the discussion. Much of the debate focused on the potential role of a private right of action and preemption. Good points were made throughout the debate, particularly Rep. Kat Cammack’s discussion of her concerns about delegating a historically weaponized FTC further power. But what is as notable as what was debated is how little attention was paid to the key underlying privacy and speech issues for both young people and adults that these laws can create.
When it comes to keeping young people safe online, parents and other trusted adults, not policymakers, are in the best position to help young people learn to navigate the internet and other technologies in safe and beneficial ways. Each family and each child’s needs are distinct. These blunt policy instruments take a one-size-fits-all approach that can render vulnerable or abused children even worse off, as ranking member Rep. Frank Pallone stated.
Tools and solutions that enable parents to support their children already exist, whether from platforms, app stores, devices, or even internet service providers. The focus should be on empowering and educating adults to talk to their children about technology (and serving as good role models in their own technology use), not on making the government the decision-maker, simply because it can be a difficult or uncomfortable task for parents. As Rep. Troy Carter noted near the end of the debate, moving hastily on legislation could bring significant unintended consequences.
The reality is that if these bills become law, there are serious privacy stakes for all internet users. As Rep. Alexandria Ocasio-Cortez correctly noted in her opening statement, we’ve already seen these laws apply to adults as well as kids by limiting adults’ access to information by default unless they give up identity-verified privacy info like biometrics.
As Rep. Ocasio-Cortez further noted, the collection of such information can create vulnerabilities, whether by bad actors breaching the data or by concerns of government surveillance using this data. Similarly, I recently noted that the reality is such laws raise serious concerns about the future of anonymous speech for adults and adults’ online privacy, something the Founders certainly understood, given their own reality. Rep. Jake Auchincloss expounded on this point in his discussion of Sammy’s Law, noting how the law could provide access of an adult not only to their own teenager’s messages but also to those of other teenagers. One can imagine that, while well-intentioned, this could actually be abused in ways that increase potential privacy and safety concerns for young people as well.
Many members seemed to cite states passing similar legislation as part of the reason Congress needs to act. However, they seemed to ignore that many of these proposals are currently enjoined due to serious constitutional concerns. And as Rep. Lori Trahan noted, a law that is found unconstitutional protects no one. Some may point to the recent Supreme Court ruling in FSC v. Paxton as evidence for the constitutionality of broad age verification. But as I have discussed previously, the Supreme Court’s ruling was focused only on age verification in the particular context of sexually explicit material. Policymakers should not presume that it is a go-ahead from the Supreme Court to institute unchecked age verification regimes, particularly given the impact on adults’ speech and privacy rights as well as those of young people.
While this markup reported the bills favorably, there is likely to be further debate on the topic. Policymakers should seriously consider the legal and economic implications of the enforcement issues presented in the bills reported out of markup.
Whether it’s the role of the administrative state, preemption, or a private right of action, there will be serious ramifications for the speech and privacy rights of internet users of all ages.