US lawmakers continue to focus on children’s online privacy and social media use | WilmerHale

On April 26, 2023, a bipartisan coalition of federal lawmakers proposed new legislation that would place additional restrictions on social media use by children under the age of eighteen. The Children’s Social Media Protection Act (the “Act”) follows a trend in which federal and state legislatures continue to focus on children’s online privacy. Although several attempts have been made in recent years to pass federal legislation that would update the Children’s Online Privacy Protection Act (“COPPA”), none have prevailed despite the inability of Congress and the Federal Trade Commission to enact broader privacy laws to say goodbye to delay in updating its COPPA rule. In the absence of federal progress on these issues and increasing attention to alleged harms to children from social media use, state legislatures have focused on these issues and quickly passed legislation across the country aimed at regulating online platforms and social media and prove harmful could be impracticable for many businesses and have the potential to have unintended consequences for children.

In this post, we’ve summarized the key takeaways from the law, identified policy implications in Congress and state-level trends related to children’s privacy. We will continue to keep you informed of important innovations in this area.

The central theses

The Social Media Protection of Children Act aligns with many state-level activities on these issues and focuses on regulating the relationship between young people and social media. The law defines “social media platform” broadly without specifying a minimum size threshold, but excludes platforms that are not designed to distribute media content between users, such as Business transaction platforms, newsletters, conference calls, crowdsourced reference guides, and collaborative cloud-based storage sites, video games, email, and sites that provide educational information on behalf of schools. The law would set a minimum age of thirteen for all social media platforms, require parental consent for teens wishing to use social media, and ban platforms from using algorithms to recommend content to users under the age of eighteen.

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Age verification program:

The law introduces a strict age verification requirement and requires social media platforms to verify the age of everyone who is an account holder. The law directs the Commerce Secretary to set up a novel program through which the federal government would verify a person’s age by verifying their identity and issuing “secure digital credentials” that can then be presented on social media platforms. This identity verification would require users to either upload their ID card or consent to the use of other means of age verification, such as. B. Government DMV records, IRS records, Social Security Administration records, or “other regulatory or professional records” for review by the Secretary of Commerce. This proposal appears to be designed to avoid the privacy and data security risks posed by users uploading identity documents to the individual servers of each social media company they choose to create accounts with. However, it would give the federal government significant access to personally identifiable information. The law also allows the program to store aggregated, anonymized data.

Other notable provisions:

Similar to laws recently passed in Utah and Arkansas, the law would require parental consent for users under the age of eighteen to create a social media account and would ban children under the age of thirteen from using any social media platform unless , no data is collected from them at all individuals. This means that social media companies could not offer platforms specifically targeted at children under the age of thirteen, even if those platforms comply with COPPA. It would also give parents full control over how their teens can communicate with other teens online, raising significant concerns about the First Amendment.

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The law would also ban social media platforms from using personal information from users under the age of 18 for algorithmic recommendation systems. An algorithmic recommender system is defined as “a fully or partially automated system that suggests, promotes or ranks information, or presents advertisements to an individual”. Most social media platforms rely on recommendation systems to ensure content is relevant to users. However, this restriction does not go as far as banning all recommended content for underage users, as an exception is made for context-based advertising or recommendations.

Enforcement:

The Act grants the Federal Trade Commission and the State Attorneys General authority to enforce all of the above provisions of the Act, which is generally consistent with how COPPA is currently enforced. Any violation of the law would be treated as a violation of the Federal Trade Commission Act and could result in significant civil penalties.

Potential impact on children’s privacy

Shortly after the enactment of the law, Sen. Markey (D-Mass.) and Sen. Cassidy (R-La.) reinstated “COPPA 2.0” and Sen. Blumenthal (D-Conn.) and Sen. Blackburn (R-Tenn.) introduced the children Again, these are broader bills designed to overhaul the federal approach to children’s privacy.

At the state level, numerous laws have recently been passed to protect children’s privacy. In March, Utah became the first state to enact legislation restricting young people’s access to social media. Arkansas enacted a similar law in April mandating parental consent and age verification on social media platforms, while other states including Texas, Ohio, New Jersey and Louisiana are currently pending legislation on these issues. This spate of (relatively limited) activity is a result of the passage of the California Age-Appropriate Design Code in California, which means that all companies offering online services that children fall under the law can access their Approach need to drastically rethink children’s privacy.

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It remains to be seen whether the federal proposals move forward, or whether a more focused effort around social media and state-level youth will continue to gain traction in other states, but we expect that when it comes to children’s privacy — which is a bipartisan issue — the case will continue to be at the center of all discussions of federal privacy legislation in general. With broader data protection legislation stalled, children’s privacy is currently one of the most likely areas for compromise and actual legislation. We encourage any business that has a significant number of teenage users, or is aware that there are teenage users on its online platforms or services, to seriously consider whether it provides adequate protections and age verification options for those users. The questions raised by the federal proposals and state laws are complicated and there are no right answers, but we anticipate that there will almost certainly be state changes regulating teens and children online in the near future (at the state level, there certainly are already) and companies need a more thoughtful approach. We regularly help our clients address complicated children’s privacy issues and are happy to discuss options with you to address the various concerns that these new laws and the evolving state legal landscape are raising on these issues.