Would banning teens from social media violate their First Amendment rights?

0:00Not everything from Australia translates here, social media bands for kids, Vegemite. From American Public Media, this is Marketplace Tech, I'm Megan McCarty-Karino. California lawmakers are considering banning kids under age 16 from social media. AB 1709 was modeled on an Australian policy and has received bipartisan support. But it could run into the same challenges many state laws to regulate social media have in the US, the First Amendment. That's according to Aaron Mackie at the Electronic Frontier Foundation, a non-profit that's filed friend of the court briefs arguing these laws violate free speech rights. I mean, I think what it points to is we're in a particular moment where the biggest online social media services are seen as not in the public's interest and also potentially, you know, harming kids.

1:06But I think the response here, which is to just simply ban all kids from social media, is going to create a lot of problems actually for children and also will violate their First Amendment rights. This isn't the first attempt that California lawmakers have made to sort of regulate social media. We talked years ago about the age appropriate design law. It's also very much in line with laws we've seen passed all over the country. Can you tell me about where this kind of fits into the national landscape? Yeah, I mean, starting with California's age appropriate design code, that law has been largely blocked as violating the First Amendment rights of both minors as well as the online services. And then we've seen I would say close to 15 other states pass similar laws that say either we're going to ban kids from social media or we're going to require parental permission and by and large,

2:10all of those laws have been blocked because they violate First Amendment rights and then the way in which they're implemented by imposing age verification gates also violate the rights of all adults as well. So these tend to run into First Amendment problems. So just like adults, young people have a First Amendment right to speak and to access speech, particularly on social media where the predominant amount of speech and the content of speech is lawful. And the Supreme Court has repeatedly affirmed that there's no kids exception to the First Amendment. And what California is seeking to do here is essentially just cut all kids off from the major platforms and places where people are talking online and engaging in a variety of speech. We'll be right back. If you're a business leader, Intuit QuickBooks Payroll is an essential tool that completely integrates payroll, time tracking, HR, and your financials in a powerful all-in-one command center.

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4:25Are there approaches to this issue that EFF supports? First and foremost, many of the harms that are perpetuated by these major dominant online services we're talking about maybe five or six total companies are because of the invasive privacy practices and surveillance that occurs on these platforms. And so a lot of the downstream harms that not just young people but adult experience in terms of being fed certain types of content or advertising is the result of this online surveillance. EFF has long supported is telling lawmakers to go after these companies business models to prevent them from engaging in this type of online corporate surveillance by passing comprehensive consumer data privacy laws that actually empower users to protect their own privacy and to prevent this surveillance without sort of real meaningful consent. And so the thing instead is an effort to widely sort of deny and block young people from these platforms where we all that we all use every day to engage in religious practices, to engage in social commentary, political organization, connecting with families and friends and finding communities online.

5:35I think this down a little bit more for me. How do this sort of privacy data privacy practices of these companies result in you know some of the harms to children that many people are concerned about and how would kind of addressing the issues in terms of data privacy mitigating some of those harms. So what happens right when when you are on a social media service all of your activities right what you like what you share what you post what you view right like how long you watch a particular video. All of that information is being captured by the social media service is then turned around and used later to either direct certain types of advertising or other types of harmful content at you in ways that are really sort of just not transparent. And I would just note that like this is happening to everyone and these harms are not unique to children. And so if you stop the surveillance of all of your activities and we make it so that the online service can actually capture that information and then use that information that's going to we think mitigate a lot of the downstream harms that we're now experiencing.

6:42We just had this landmark verdict in March that found meta and YouTube liable for designing their products to be addictive for young users. If that verdict stands do you think it will affect how legislative efforts to regulate social media play out. I think so I mean I think it's it's obviously groundbreaking it's a little too early to tell I think it's a little bit dangerous when we start to regulate by individual jury trials. I think legislative solutions are much more preferable but I think you know if that trial is upheld and we know there are there are literally dozens of other these cases sort of in the pipeline and they're all affirmed actually what we'll see is it is a sort of giant shift in liability in ways that I think people don't anticipate. How it will affect their ability to actually use these online services to share information and also be able to access speech of those who they they want to hear from. That's Aaron Mackie at the Electronic Frontier Foundation.

7:42Asus Alvarado and Nicholas Giong produce this episode I'm Megan McCarty Carino and that's Marketplace Tech. This is APM.