Balancing First Amendment, Data Privacy Key To Making Social Media Safer For Kids, Experts Say

By Ian Karbal | Pennsylvania Capital-Star

This session, Pennsylvania lawmakers have introduced a number of bills aimed at making the internet a safer place for kids, taking particular aim at social media companies.

A bill that passed the House last month, for example, would require young social media users to get parental consent before opening accounts and would also require social media companies to develop policies for addressing what the bill calls “hateful conduct.”

“It is far past time for us to act on behalf of children and parents and put in place a modicum of protections and guardrails to protect our children,” Rep. Brian Munroe (D-Bucks), sponsor of House Bill 2017, told his colleagues.

While numerous studies have raised concerns over the effects of social media use on teen mental health, and political scientists have warned of social media’s potential to amplify societal divisions, free speech advocates say that bills like Munroe’s may interfere with social media companies’ and users’ First Amendment rights. 

Moreover, tech policy advocates with a focus on data privacy have warned that bills requiring age verification could result in social media companies collecting even more sensitive data from users in the process.

Similar laws passed in other states, such as Ohio, have been challenged or blocked in courts.

These same concerns are true of other bills addressing the perceived problems with social media. One bill would ban Tiktok in Pennsylvania over concerns of Chinese government influence. A federal law banning the social media platform prompted a lawsuit by TikTok and its parent company. 

Another bill similar to Munroe’s was introduced in the Senate. And yet another bill would ban anyone under 18 from accessing pornography websites, effectively requiring adult users to show identification to prove they aren’t minors — or, more concerning, incentivize the collection of biometric data to guess a user’s age.

Advocates warning of the consequences of bills requiring social media companies to create policies regarding what can and can’t be said on their websites, or requiring age-verification for users, say there is room for legislators to address their concerns. 

Sophia Cope is a senior staff attorney at the Electronic Frontier Foundation, a nonpartisan advocacy group focused on digital civil liberties. Cope believes lawmakers have a case to be concerned about the impacts of social media on young users particularly, but that she too often sees laws that would address that by limiting the free expression rights of social media companies and their users.

“I think there are some very well meaning bills out there, but they just tend to be overbroad,” Cope said. “Whenever you attempt to regulate anything that has to do with speech, you’re always going to bump up against the Constitution.”

Cope noted that many states have attempted to regulate content on social media platforms, often driven by the partisan lean of their legislatures. Texas and Florida, for example, passed bills aimed at stopping what their Republican-majority legislatures perceived as conservative censorship. New York, on the other hand, passed a bill that, like Munroe’s, a Democrat, would require companies to develop hate speech policies. New York’s law was blocked by a District Court. Florida’s and Texas’ laws are being challenged in the U.S. Supreme Court.

Cope sees all of these attempts as violating companies’ First Amendment rights. She  suggested one way lawmakers could protect young users is by requiring digital literacy classes.

“This is how you tell a fraudulent website from or non-fraudulent website, this is how you adjust your privacy settings, these all of the different the do’s and don’ts of being safe online,” Cope said. “Where’s that training?”

Similarly to Cope, Kate Ruane, director of the Center for Democracy and Technology’s Free Expression Project, is concerned with lawmakers’ attempts to directly address how social media companies moderate content.

“I am particularly worried about the government telling anybody what can or cannot be available on a social media platform,” Ruane said.

Ruane said lawmakers could instead focus efforts on addressing the incentive structure that can lead to harmful content’s proliferation.

“Comprehensive consumer privacy legislation can go a long way toward reducing some of the big concerns,” said Ruane. “A lot of what people point to is that these companies are incentivized to keep you on the platform by showing you whatever it is that keeps you personally on the platform. If they don’t have that profit motive any longer, or if that profit motive is significantly changed, then theoretically that should change the incentive structure for how they design their services.”

As a possible example of how such laws may lead to a better or safer product, Ruane pointed to Google. 

“They measure quality by relevance and by other factors that are supposed to lead to better search results, because their goal is better search results,” Ruane said. “If the goal is only engagement, you are measuring quality based on engagement.”

One section of Munroe’s bill would address data privacy concerns directly by making it illegal to collect data on users under 18 with the intention of serving targeted ads or selling it to third parties. 

Ruane, Cope, and a representative of the American Civil Liberties Union’s Pennsylvania chapter, all believe that particular section of the bill could go farther, and be uncoupled from the aspects raising data privacy and free speech concerns.

“To be honest, why are we limiting it only to kids,” Liz Randol, the legislative director of the Pennsylvania ACLU, said in an interview last month.

While federal lawmakers have failed to move national data privacy legislation forward, other states have led the way. 

Illinois, for example, has a law banning companies from collecting their users’ biometric data without consent in most cases. That law led to a successful $650 million class action lawsuit against Facebook (now Meta) when it used image-matching technology to identify people in pictures posted to their platform.

In 2018, California passed one of the nation’s broadest digital privacy laws, which requires websites to tell users how their personal data is being shared with third parties and allow users to opt out of selling their data to third parties. The law does not just apply to minors, but all internet users.

Ruane said lawmakers could also require social media companies to be more transparent about how they use their algorithms to steer users toward content and how they moderate content.

Amid rising concerns of how social media algorithms are shaping political discourse and culture, some of the largest social media companies, like Meta and X, formerly Twitter, have taken steps to limit researchers’ access to data on what users are seeing and sharing on their sites.

Studies have drawn mixed conclusions on how social media algorithms affect user behavior, particularly when it comes to political polarization, but advocates like Ruane still contend that requiring companies to be transparent about how they decide what content to show users could allow more informed use of their products.

The hope of algorithmic transparency laws is that, if users are aware of how their attention is being diverted, they can make more informed decisions about where they spend their time online, and think critically about what they’re seeing and why.

“The ability to study exactly how these content moderation systems are working and how they are affecting users of social media services … helps us turn around and make and make recommendations that can make these services better,” Ruane said. “But government control of these services is deeply concerning.”

Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: info@penncapital-star.com. Follow Pennsylvania Capital-Star on Facebook and Twitter.

Report a correction via email | Editorial standards and policies

---

---