• by Wendy Davis  @wendyndavis, May 2, 2023

Lawmakers on Tuesday introduced a revised version of a controversial bill that would regulate how online platforms display content as well as ads to users under age 17, and would also limit how those companies harness minors' data.

Among other mandates, the Kids Online Safety Act, put forward by Senators Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee) would require platforms to take “reasonable measures” to prevent and mitigate a host of harms potentially associated with social media use -- including depression, eating disorders, and online bullying -- when displaying material to users the platforms know or should know are 16 or younger.

The proposed law also would require platforms to use the most privacy protective default settings for teens.

Other provisions would require platforms that allow ads to minors to label all ads, say why minors are being targeted for particular ads, and disclose all commercial endorsements.

While the law wouldn't require teens to obtain parental permission to use social media, it would require platforms to inform parents that their children have accounts.

Some children's advocates -- including Fairplay, the American Academy of Pediatrics and the Center for Digital Democracy, voiced support for the bill -- arguing it would “create robust online protections for children and teens online.”

A previous version of the bill advanced out of the Senate Commerce Committee last July. 

The law proposed Tuesday differs in a few ways from the one introduced last year. One change is that this year's bill only applies when platforms know or “reasonably should know” that users are under 17. Another is that this year's version specifically says platforms can allow minors to search for and request content.

But critics continue to view the bill as problematic, despite those revisions.

The think tank TechFreedom, which said last year that the measure would violate the First Amendment, reiterated those concerns on Tuesday.

One issue is that it's not clear when platforms reasonably should know that particular users are under age 17, according to Ari Cohn, free speech counsel at TechFreedom.

“In the face of that uncertainty, platforms will clearly have to age-verify all users to avoid liability -- or worse, avoid obtaining any knowledge whatsoever and leave minors without any protections at all,” he stated.

The bill also could prevent minors from accessing material protected by the First Amendment, Cohn states. The First Amendment generally protects a wide range of content that might be harmful -- such as photos associated with eating disorders.

He states that even though the new version of the bill says platforms can allow minors to seek out content, other provisions could subject platforms to liability for displaying potentially harmful material -- even if requested by users.

“The most ‘reasonable’ and risk-averse course remains to block minors from accessing any content related to disfavored subjects, ultimately to the detriment of our nation’s youth,” Cohn states.

The industry funded policy group Chamber of Progress also criticized the bill, warning that it could be used to suppress material related to reproductive healthcare or sexual orientation.

“It's Chekhov's content moderation law. Give Republican AGs a path to deplatform LGBTQ and reproductive health content in Act I, and you can bet they'll use it by Act III,” the organization tweeted.