How a comprehensive federal privacy law could protect kids online

On our show last week, we had Sen. Amy Klobuchar share her take on the recent Senate hearing with tech executives. You remember the one, with the execs, including Meta’s Mark Zuckerberg, doing their best to stall in response to searing questions about how to keep kids safe online.

Klobuchar told us that hearing may have actually moved the needle on that issue. She stressed to us that such events educate the public and help lawmakers get on-the-record pledges of support for specific bills from tech CEOs.

In the absence of federal rules, a patchwork of state laws has filled the void. How’s that going? Nicol Turner Lee, senior fellow at the Brookings Institution, gave Marketplace’s Lily Jamali the rundown.

The following is an edited transcript of their conversation.

Nicol Turner Lee: States have pretty much been leading the charge and ensuring that they’re creating local legislative directives that assist in identifying what those harms may be and what type of enforcement they want to actually engage. You know, the challenge is, I think first and foremost, we really don’t want to become a country where every state sort of has its own imperative on monitoring or providing oversight and enforcement of social media companies. But more importantly, the type of legislative directives vary because the technology is different.

Lily Jamali: Well, how does having this kind of patchwork of laws in all these different states impact the federal government as they try to reach a consensus on one law?

Turner Lee: Well, first and foremost, it’s unfortunate that at this time we don’t have a national data-privacy standard. And that’s where I’m a little concerned because I think the challenges that we’re seeing by the very incongruent applications of children’s privacy laws across various states, they’re going to make them harder for us to disentangle what should go into a privacy law that’s much more nationally based. And more important, essentially they’re creating a patchwork of confusion in many respects.

Jamali: And are you saying that making federal law around online safety for kids is really challenging when there’s no federal privacy framework? Am I hearing you correctly there?

Turner Lee: To a certain extent, yes. I have children myself, and I think about having rules that may just apply to them, but they don’t apply to me. We’re trying to protect, in many respects, young people from bad actors, including adults that just do really horrible things online, in addition to what we’re hearing the argument coming from parents focus on the types of outcomes that occur when you have a lot of algorithmic interoperability in applications and outcomes. My point is, having a federal privacy standard at least carves out the rules of the road that start at the top. And I do worry, as a policymaker and one who’s been watching this space, if we do land on rules for just minors, how do we work ourselves into rules that apply to the broader constituents that are out there? And that’s partly our fault. Other countries have gotten ahead of the game when it comes to a data-privacy standard for their countries. And here we are still trying to figure that out. And I think we’ve done ourselves a disservice by waiting too long.

Jamali: Well, I want to ask you about something that Sen. Amy Klobuchar said. We had her on recently, and she said she’s happy that states are moving ahead with regulation, but there’s still room for federal regulation. Here’s what she said:

Amy Klobuchar: It’s not the way to run a railroad. It is much better if we had strong federal laws that were the same across the board and actually worked.

Jamali: Do you agree that to get something that effectively protects kids online, we need one federal law?

Turner Lee: Well, I think to the senator’s point, we do need a federal law that can provide some certainty in this space and create real guardrails and not those that are artificial and, in some instances, hypothetical. We still want our internet to be quite balanced because whatever we land on in terms of federal privacy legislation has to respect that as a nation we’ve been the leaders in balancing innovation with what we’re seeing now, which are these opportunities that come through technology. At the same token, to the senator’s point, I think because of the huge concerns that are happening among parents and adults, when it comes to young people, and there’s always been a carveout historically, when it comes to children’s privacy dating back to some of the early decency acts, where we’ve had some concerns about how young people have sort of reeled into the internet spaces that appear to be filled with malfeasance. I think going forward, those harms still exist, but they have to be legislated in a way that we’re not creating a law for children’s privacy that does not necessarily provide some of the broader expectations that we have when it comes to how your data is collected, how it’s stored, whether it’s deleted, who it’s shared with, how it’s sold. I mean, we don’t want our children to be part of this internet marketplace, where we’re not able to just give them, a parent, as well as young people, those verified protections from just harmful scenarios.

Jamali: We all, I think, collectively agree that we want to protect kids online. We know it’s the Wild West out there and we want to do something. This privacy piece of it is very interesting and, I think, sometimes gets lost in that conversation, that there is this other side, there are consequences to enacting some of this legislation as it’s written. So I wonder, is there enough research that’s been done, that’s out there, for legislators, for policymakers, to move forward? What is your take on, do we know enough about what legally works and doesn’t work before we move forward with implementing state or federal legislation on this issue?

Turner Lee: So what we do know is that at the federal level, the Senate Commerce Committee did vote out two bipartisan bills to protect children’s internet use, and this was in summer 2023. The first one is the Kids Online Safety Act, which we call KOSA, which is intended to create new guidance for the Federal Trade Commission and state attorneys general with the intention of penalizing companies that expose children to harmful content on their platform. And then the second bill that was voted out of the Senate was the Children’s Online Privacy Protection Act 2.0, they call COPPA 2.0, as a matter of fact, and that particular bill is proposing to increase the age from 13 to 16 under the existing law because we’ve had COPPA in action for quite some time. And it’s also proposing to establish some bans on companies that advertise to children.

Now, there’s an interesting argument from the LGBTQ community around age verification assurance for young people who may be going to the internet for the safety of being outed, and what does that look like when you have to go to your parent and get that approval? But interestingly enough, I also had someone from the Cato Institute, which presented a similar view when it comes to what do those documents look like? How do you decide which content needs to be verified or age assured? So I think Congress really has to sort of discern some of the cries that we’re hearing from parents and particular segments of our community, and balance those to a certain extent with the rights of young people and children. As we think about this debate, we need something, but I do think to your question, we need to have more input from constituents, more research on the impact and implications and potentially more dialogue and discussion on what role do we also as parents play in ensuring that we have a much more literate public when it comes to the use of these tools.

Jamali: And we asked Sen. Klobuchar about this, too. She said that the goal should never be to ban minors from social media. But there are some measures to take.

Klobuchar: There are all kinds of rules you can put in place to protect [children]. One is about the data and how the data is shared on the kids. One is to make sure what they have access to and what they don’t have access to.

Jamali: As you’ve spent time doing research on all of this, have you seen certain bills that actually do infringe on First Amendment rights of minors, maybe even privacy?

Turner Lee: Well, I think some of the state bills are a lot more aggressive than others when it comes to their state laws, particularly among the more conservative states that have actually put out their legislation. And because these states are defining platforms differently, in a paper that we recently wrote at the Brookings Institution we actually do a chart where we show that some social media companies or applications may be exempted from some of the state laws, whereas others have greater scrutiny. As I continue to say, the train has left the station. I struggle, right, because I think that we want to develop good digital citizens. But we also have to remember we cannot propose what rights young people should have. My point is, I think some of the more conservative states are sort of thinking about this debate of children’s privacy as something that is more of a developmental conversation on where young people should be. And that worries me because some of those states are also deciding what books we should read.

Jamali: Before I let you go, if there’s one idea that you want to leave listeners with, when it comes to this idea of effectively protecting kids online, allowing them to be online but to do it safely, what would that idea be?

Turner Lee: You know, most important, we need Congress to pass comprehensive federal privacy legislation. And then I think, the second thing is, let’s not make this a bill that is the result of political infighting and ideological divisions. Parents, I’m not saying we need to get our act together, but we need to get our act together. We just need to really start to understand that these tools are real, and it is incumbent upon these companies to continue to have our kids’ best interests in mind. It’s also in our interest to understand what they’re exposed to and how they engage in these platforms and talking to them. We’ve got to stay awoke on these things, because if not we’re going to blame someone, and sometimes that someone may be ourselves as well.

More on this

To give you a sense of how hard it is to legislate a safer internet for kids, even at the state level, consider a recent attempt here in California, home to many tech giants. The California Age-Appropriate Design Code Act was passed unanimously by state lawmakers and signed into law by Gov. Gavin Newsom in 2022. Reuters wrote that it would have required platforms to assess whether their products could harm children before releasing them, to estimate the ages of young users and come up with privacy settings for them if they didn’t hike settings for everyone.

Well, the tech lobbying group NetChoice sued, and in September, a federal judge blocked California from enforcing the law. The judge found that the restrictions on commercial speech likely violate the First Amendment. In making her ruling, the judge acknowledged being “keenly aware” of the harms that children may suffer online but found the law too broad as written.

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