SIXTEEN FOR SOCIAL MEDIA? CONGRESS MAY SAY SO

By Steven Ellison, Esq. On March 29, 2023 | Last updated on March 30, 2023

Rates of depression, anxiety, and suicide among teens and adolescents have skyrocketed since the rise of social media. According to the Centers for Disease Control, the suicide rate among 10- to 24-year-olds increased by 57% between 2007 and 2017. Some in Congress blame Instagram, Facebook, Snapchat, TikTok, and other Big Tech platforms for the deterioration in the mental health of young Americans.

CHILDREN’S ONLINE PRIVACY PROTECTION ACT

Laws governing internet use by minors have been around for some time. Since Y2K, the federal Children’s Online Privacy Protection Act (COPPA) has been regulating websites’ privacy policies with the aim of protecting young children. The law applies to any website that collects data on anyone under the age of 13 — which includes pretty much all social media platforms. One of the requirements of COPPA is that a given site must obtain parental consent before they collect data for users under 13.

As a result, most of the major platforms impose a minimum age of 13 to sign up for a social media account or require a parent to create an account on behalf of their child. But a recent survey shows that children sign up for a social media account at an average age of 12.6 years, with 23% of “tweens” (ages 8-12) having their own accounts. Moreover, by the age of 16, the vast majority of minors — we’re talking millions — are on social media regardless of parental consent. Increasing evidence indicates that frequent social media use may be the cause of psychological harm among all ages, but especially among teenagers.

POTENTIAL NEW LAWS

Last month, Republicans in both houses of Congress proposed legislation to crack down on these problems. Congress is currently considering two different bills that would raise the minimum age on social media to 16. Big Tech companies that failed to comply could face fines and lawsuits. We discuss those bills below.

THE SOCIAL MEDIA CHILD PROTECTION ACT

At the beginning of February, Representative Chris Stewart (R-Ut.) introduced H.R. 821, a bill entitled the Social Media Child Protection Act. This bill would require social media companies to prohibit children under the age of 16 from using their platforms. Users would have to provide a government-issued ID to access the platform or use some other “reasonable method of verification,” taking into account existing technology. The bill also contains some online privacy protections.

This bill has teeth. First, it empowers the Federal Trade Commission (FTC) to enforce its provisions as it would other unfair or deceptive trade practices and inflict the same penalties under existing federal law. These can be steep fines.

Second, the bill gives state attorneys general the power to enforce its provisions. If a state has “reason to believe” that a social media platform has engaged in an “act or practice” that violates this law, the attorney general, giving notice to the FTC, can sue in federal court and recover injunctive relief and obtain damages and other compensation on behalf of residents of the state.

Third, this bill also gives parents on behalf of their affected children a “private right of action.” This allows them to sue an offending social media company in federal court. They can get an injunction stopping the practice, recover compensatory and punitive damages, and obtain other relief that the judge deems “appropriate.”

THE MATURE ACT

The other house of Congress soon followed suit when Senator Josh Hawley (R-Mo.) introduced S. 419, a bill entitled the Making Age-Verification Technology Uniform, Robust, and Effective (MATURE) Act. If enacted, the bill would, in theory, more robustly prohibit users under the age of 16 to create new social media accounts by requiring companies to use an age verification process.

Before allowing new users to create accounts and use social media apps, the platforms would be required to obtain certain documentation from them, such as their full legal name, date of birth, and a scan of a government-issued identification. As a matter of privacy protection, companies would also be banned from sharing or selling any information obtained to verify identity. Accounts already created before the law takes effect would be exempt.

The bill has some, albeit fewer, teeth. A violation of the age requirement would be treated as an unfair or deceptive practice under existing federal law. Parents would also get a private right of action against the social media company allowing for the recovery of injunctive relief, damages, and attorney’s fees. The bill would also set up audits by the FTC to further ensure that the companies are complying. These provisions create a substantial litigation risk for social media companies: comply, or you will get sued.

SUPPORTERS SAY . . .

Supporters of these bills say that social media platforms pose a demonstrable risk of harm to kids — especially following the pandemic — and should be treated like any other threat to their well-being. Rep. Stewart defended his bill, saying: “[W]e have countless protections for our children in the physical world — we require car seats and seat belts; we have fences around pools; we have a minimum drinking age of 21; and we have a minimum driving age of 16.” Supporters argue that similar protections should exist in the digital world as a matter of common sense.

OPPONENTS SAY . . .

Opponents of the bills claim that, at least for certain demographics, banning access to social media could actually be harmful. Denying access to many kids could eliminate an outlet that helps them build a community, get information and other resources, and generally feel a sense of belonging. These consequences would be especially felt by marginalized youth, such as children who identify as LGBTQ+.

Another bone of contention is the First Amendment. Young people, like Americans of any age, have free speech rights. Although that right can be limited in some contexts, it generally cannot be banned outright. A bill that would effectively do that by eliminating access to social media — the digital “town square” — would be subject to Constitutional challenges.

Finally, opponents believe that there are alternatives to an outright ban for kids. They argue that instead of prohibiting children under a certain age from using social media, the government should require schools to provide education about the harmful effects of social media in classrooms. They reason that sufficient education about the risks of social media may mitigate the serious mental health problems caused by social media access.

WHERE DO THINGS STAND?

So far, neither bill seems to have gained a lot of steam. Neither has picked up any co-sponsors. Rep. Stewart’s bill is being considered by the House Energy and Commerce Committee, while Sen. Hawley’s bill was referred to the Senate Commerce, Science, and Transportation Committee. But given the bipartisan agreement in the federal government about the harms of social media (President Biden and his Surgeon General have called it a “mental health crisis”), chances are good that social media companies will eventually see some form of new legislation on the issue. Stay tuned!

Citation

Ellison, Steven. 2023. “Sixteen for Social Media? Congress May Say So.” FindLaw. March 29, 2023.

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