In California, a Democrat and a Republican figured out how to pass the country鈥檚 toughest online privacy law protecting kids. If their experience is any indication, though, federal legislators can expect fierce pushback from Big Tech if they heed President Joe Biden鈥檚 call for similar action on a national scale.
The law, modeled after legislation in the , will ban websites from profiling users in California under age 18, tracking their locations, or nudging them to provide personal information. It will also require online services to automatically put privacy settings at their highest levels on sites that kids access when the law goes into effect next year.
Passed with unanimous bipartisan support, the measure presents a road map for federal lawmakers to stop social media companies from targeting kids. But the tech industry鈥檚 response, including a recent lawsuit that describes the law as having global ramifications, demonstrates how hard its powerful lobby will work to undermine or dilute regulation.
鈥淏ig Tech isn鈥檛 afraid to throw its weight around, that鈥檚 for sure,鈥 said Jordan Cunningham, a Republican former California Assembly member who co-authored the bill. 鈥淭hat鈥檚 true in D.C. and Sacramento alike.鈥
Gov. Gavin Newsom last year , which imposes strict guardrails on online services that children use. Its greatest reach, some privacy experts believe, lies in the requirement that online services must consider what鈥檚 best and safest for kids from the very start 鈥 meaning that companies will have to design their websites based on privacy rules to protect users.
鈥淭he privacy piece is truly noteworthy,鈥 said Jennifer King, a privacy and data policy fellow at the Stanford University Institute for Human-Centered Artificial Intelligence. 鈥淚t basically says, 鈥榊ou can鈥檛 collect data on kids under 18, and you have to consider that in the design of your product.鈥欌
That鈥檚 precisely the sort of regulation online services want to avoid. Three months after Newsom signed the bill, the deep-pocketed tech industry responded with a federal lawsuit in December to block the law from taking effect on July 1, 2024.
One of the industry鈥檚 most powerful trade associations, NetChoice, argues, in part, that the law violates free speech provisions of the U.S. Constitution. Members of the association include giants like Google, Meta (which owns Facebook and Instagram), TikTok, and Twitter.
Biden, in his on Feb. 7, asked Congress 鈥渢o pass bipartisan legislation to stop Big Tech from collecting personal data on kids and teenagers online鈥 and to prevent targeted advertising to children.
鈥淲e must finally hold social media companies accountable for the experiment they are running on our children for profit,鈥 Biden said.
have found that targeted ads and pushes toward certain online content can be harmful to kids鈥 well-being, and a 2021 report found that Facebook鈥檚 own research indicated nearly a third of teenage girls after using Instagram.
In California, Cunningham and Democrat Buffy Wicks overcame the fierce opposition of an industry that in Sacramento by appealing to their colleagues not just as lawmakers but also as parents. The measure drew strong support from the international , which pushed for its passage after it helped create the U.K. law, and from Facebook whistleblower , whose testimony before Congress in 2021 sparked renewed scrutiny of the social media giant鈥檚 privacy practices.
鈥淭here is a lot of common ground for all of us, Democrats and Republicans, to come together and say, 鈥極K, what鈥檚 really going on with our kids when they鈥檙e online?鈥欌 said Wicks, who has two young children. 鈥淧olitically, this bill could serve as a model, especially in its bipartisan nature.鈥
Last year, the pair crafted an aggressive strategy to fend off the industry, authoring two bills that sought to hold social media companies accountable in different ways. Big Tech successfully blocked , which would have permitted state prosecutors to sue companies that knowingly addict minors.
鈥淲e knew they had to oppose a bill that imposes liability, costs, and damages,鈥 said Cunningham, a father of four who served in the Assembly for six years before declining to run for reelection last fall.
That left lawmakers room to approve the other measure, AB 2273, known as the California Age-Appropriate Design Code, with little pushback. The measure forbids online services from designing features on their websites that are harmful to children.
And its requirement that online services build safeguards into their sites, such as the default privacy settings for children, represents 鈥渁n existential threat鈥 to a tech industry that derives massive profit from its ability to mine and monitor user data regardless of one鈥檚 age, Cunningham said.
In its lawsuit, filed in the U.S. District Court for the Northern District of California in San Jose, NetChoice posits the case as one of unfair restriction on free speech guarantees. The association also claims all users will have to turn over far more personal data for online services to verify who is younger than 18.
Wicks called that assertion 鈥渇earmongering,鈥 noting that many sites already use algorithms that assess age with uncanny precision, and said she is 鈥渃autiously optimistic鈥 the law will withstand a legal challenge because it focuses on product safety and not free speech. California Attorney General Rob Bonta spokesperson Joanne Adams told KHN that Bonta鈥檚 office would defend 鈥渢his important children鈥檚 safety law in court.鈥
Newsom also weighed in last month after the industry filed a motion on Feb. 17 to block the law from taking effect this summer while the NetChoice lawsuit is pending. In his statement, the father of four said that no other state is doing more than California to protect kids.
In fact, some lawmakers want to go further. In February, state a bill that would bar social media companies from using algorithms or other technical features that direct content to children and could prompt them to purchase fentanyl, inflict harm on themselves or others, engage in dangerous diets, or take their own lives.
NetChoice association counsel Chris Marchese said the industry supports national regulation rather than state action. 鈥淲e just don鈥檛 support a patchwork of state laws, some of which will be very different from others,鈥 Marchese said.
Critics of the industry say that鈥檚 because Big Tech wants an industry-friendly law from legislators in D.C. In 2022, five of the tech industry鈥檚 biggest companies together lobbying the federal government, according to public filings. That鈥檚 more than either the pharmaceutical or oil and gas industries spent, .
This year, lawmakers have proposed bills to strip federal protections for online services that don鈥檛 do more , but it鈥檚 unclear if they will fare better than past efforts. At a hearing in February, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) , and other social media companies of 鈥渄oing everything they can to keep our kids鈥 eyes glued to the screens.鈥
If Congress does pass federal rules, California leaders hope they won鈥檛 override or weaken laws adopted in their state.
鈥淲e can see that this is tech鈥檚 next pivot, [but] we鈥檝e got to get this right,鈥 Cunningham said. 鈥淚n 20 years, people in public health will look back and say, 鈥楳an, we just let these companies conduct the biggest social experiment ever on children. How did they get away with that?鈥欌
This story was produced by , which publishes , an editorially independent service of the .
