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ICYMI: Tim Wu: Why Congress Keeps Failing to Protect Kids Online

Oct 31, 2023

Featured below is an opinion piece from former White House Competition Advisor and Columbia Law Professor Tim Wu. In the op-ed, Wu offers a White House insider’s play-by-play and details about why Congress has failed to protect kids online, how the debate around the Kids Online Safety Act (KOSA) became mired in overblown fear, and how committee infighting blocked KOSA from advancing in the previous Congress. Wu concludes by calling on Congress to heed public polling showing overwhelming support for protecting kids online and to bring KOSA to the floor. Read more below.

ICYMI: The Atlantic: Tim Wu: Why Congress Keeps Failing to Protect Kids Online

Americans are broadly united in support of laws to make the internet safer for kids. So why won’t Congress act?

By Tim Wu on 10/30/23

Roughly a decade has passed since experts began to appreciate that social media may be truly hazardous for children, and especially for teenagers. As with teenage smoking, the evidence has accumulated slowly, but leads in clear directions. The heightened rates of depression, anxiety, and suicide among young people are measurable and disheartening. When I worked for the White House on technology policy, I would hear from the parents of children who had suffered exploitation or who died by suicide after terrible experiences online. They were asking us to do something.

The severity and novelty of the problem suggests the need for a federal legislative response, and Congress can’t be said to have ignored the issue. In fact, by my count, since 2017 it has held 39 hearings that have addressed children and social media, and nine wholly devoted to just that topic. Congress gave Frances Haugen, the Facebook whistleblower, a hero’s welcome. Executives from Facebook, YouTube and other firms have been duly summoned and blasted by angry representatives.

But just what has Congress actually done? The answer is: nothing.

Everyone knows that Congress struggles with polarizing issues such as immigration and gun control. But this is a failure on a different level: an inability to do something urgent and overwhelmingly popular, despite the agreement of both major parties, the president, and the large majority of the American population.

As someone who witnessed this failure firsthand, I am pained to admit that our government is failing parents, teenagers, and children. Congressional dysfunction cannot be reduced to any one thing. But one fact stands out: For a decade and counting, not a single bill seeking to protect children has reached a full vote in the House or Senate.

It is easy to read this and want to give up on Congress entirely. But what we voters and citizens need is a mechanism to force congressional leadership to make hard commitments to holding votes on overwhelmingly popular legislation.

Whatever power public opinion and moral duty may have once had, they are no longer working.

The story of child-protection legislation in recent years could be taught as a reverse civics lesson, where bills that have the support of the president, the public, and both houses of Congress fail to become law. It would almost be reassuring if we could blame partisanship or corporate lobbyists for the outcome. But this is a story of culture war, personal grievance, and petty beefs so indefensible as to be a disgrace to the Republic.

During my time in the White House, no meetings were more painful than those with parents whose children had been killed or committed suicide after online bullying or online sexual exploitation. Parents, in more pain than any parent should have to endure, would come in bearing photos of their dead children. Kids like Carson Bride, a 16-year-old who died by suicide after online bullying, or Erik Robinson, a 12-year old who died after trying out a choking game featured on TikTok.

The case for legislative action is overwhelming. It is insanity to imagine that platforms, who see children and teenagers as target markets, will fix these problems themselves. Teenagers often act self-assured, but their still-developing brains are bad at self-control and vulnerable to exploitation. Youth need stronger privacy protections against the collection and distribution of their personal information, which can be used for targeting. In addition, the platforms need to be pushed to do more to prevent young girls and boys from being connected to sexual predators, or served content promoting eating disorders, substance abuse, or suicide. And the sites need to hire more staff whose job it is to respond to families under attack.

All of these ideas were once what was known, politically, as low-hanging fruit. Even people who work or worked at the platforms will admit that the U.S. federal government should apply more pressure. An acquaintance who works in trust and safety at one of the platforms put it to me bluntly over drinks one evening: “The U.S. government doesn’t actually force us to do anything. Sure, Congress calls us in to yell at us every so often, but there’s no follow-up.”

“What you need to do,” she said, “is actually get on our backs and force us to spend money to protect children online. We could do more. But without pressure, we won’t.

Alex Stamos, the former chief security officer of Facebook, made a similar point to me. Government, he says, is too focused on online problems with intangible harms that are inherently difficult for the platforms to combat, like “fighting misinformation.” In contrast, government does far too little to force platforms to combat real and visceral harms, like the online exploitation of minors, that the platforms could do more about if pushed. This is not to let the platforms off the hook—but government needs to do its job too.

Some of the bills that emerged in the 117th Congress, in 2021 and 2022, sought to strengthen the protection of teenagers’ privacy online. The case for such legislation is not hard to make—lack of privacy makes targeting possible. Senators Ed Markey (a Democrat from Massachusetts) and Bill Cassidy (a Republican from Louisiana) were prominent sponsors of one such bill, named the Children and Teens’ Online Privacy Protection Act.

Enacting a stronger children’s-privacy bill also seemed a good fallback if Congress should, once again, fail to pass a general privacy law protecting everyone. Whatever promise there may have been for passing such a law last year began to disappear after a nasty fight between Senator Maria Cantwell, chair of the Senate Commerce Committee and her three counterparts, Frank Pallone of New Jersey, the chair of the House Commerce Committee; Roger Wicker, the ranking Republican on the Senate committee; and Cathy McMorris Rodgers, the Republican ranking member on the House committee. The latter three co-drafted a privacy bill, with special protections for children, but they did it without Cantwell, and she opposed the bill and refused to introduce it in the Senate. The bill was then promptly roadblocked in the House by the State of California (California feared elimination of its own privacy law and did not want to lose its ability to pass future laws on the matter).  California convinced then-Speaker Nancy Pelosi, in early September, to announce her opposition, all but ending any chance of passing a general privacy bill. The deadlock over general privacy was its own tragedy, but it made a children’s bill a natural and seemingly attainable alternative.

A bolder approach to protecting children online sought to require that social-media platforms be safer for children, similar to what we require of other products that children use. In 2022 the most important such bill was the Kid’s Online Safety Act (KOSA), co-sponsored by Senators Richard Blumenthal of Connecticut and Marcia Blackburn of Tennessee. KOSA came directly out of the Frances Haugen hearings in the summer of 2021, and particularly the revelation that social-media sites were serving content that promoted eating disorders, suicide, and substance abuse to teenagers. In an alarming demonstration, Blumenthal revealed that his office had created a test Instagram account for a 13-year-old girl, which was, within one day, served content promoting eating disorders. (Instagram has acknowledged that this is an ongoing issue on its site.)

The KOSA bill would have imposed a general duty on platforms to prevent and mitigate harms to children, specifically those stemming from self-harm, suicide, addictive behaviors, and eating disorders. It would have forced platforms to install safeguards to protect children and tools to enable parental supervision. In my view, the most important thing the bill would have done is simply force the platforms to spend more money and more ongoing attention on protecting children, or risk serious liability.

But KOSA became a casualty of the great American culture war. The law would give parents more control over what their children do and see online, which was enough for some groups to transform the whole thing into a fight over transgender issues. Some on the right, unhelpfully, argued that the law should be used to protect children from trans-related content. That triggered civil-rights groups, who took up the cause of teenage privacy and speech rights. A joint letter condemned KOSA for “enabl[ing] parental supervision of minors’ use of [platforms]” and “cutting off another vital avenue of access to information for vulnerable youth.”

It got ugly. I recall an angry meeting in which the Eating Disorders Coalition (in favor of the law) fought with LGBTQ groups (opposed to it) in what felt like a very dark Veep episode, except with real lives at stake. Critics like Evan Greer, a digital rights advocate, charged that attorneys general in red states could attempt to use the law to target platforms as part of a broader agenda against trans rights. That risk is exaggerated; the bill’s list of harms is specific and discrete; it does not include, say, “learning about transgenderism” but it does provide that “nothing shall be construed [to require a platform to prevent] any minor from deliberately and independently searching for, or specifically requesting, content.” Nonetheless, the charge had a powerful resonance and was widely disseminated.

Sometime in the late fall of 2022, Chairman Pallone made the decision not to advance children’s privacy or children’s protection bills out of his committee, effectively killing both in regular session. Pallone (and his Republican counterparts) argued that passing a children’s privacy law would take the wind out of the sails of some future effort to pass a comprehensive privacy bill (for which, I note, we are still waiting). When it came to his reasoning for killing KOSA, Pallone mentioned the concerns of the special interest groups—his spokesman pointed out to me that “nearly 100 civil rights organizations had substantive policy concerns with the bills.” There was, finally, as his staffers freely admitted, as a form of payback involved—a desire, shared by McMorris-Rogers, to punish Cantwell for having blocked the adult-privacy bill. A spokesman for Pallone insisted to me recently that “there was never a path forward for either COPPA or KOSA” based on the opposition of unnamed members of Congress and the civil rights groups, and that “young people will quickly age out of age-specific protections” anyway. (I note that civil rights groups don’t actually have voting rights in Congress.)

There was, in fact, one last path forward in 2022. Senator Blumenthal managed to get KOSA inserted in the early draft of an end-of-year spending bill, subject to the sign-off of House and Senate leadership. It was, however, promptly and shamelessly removed by Mitch McConnell, presumably to avoid giving Democrats the win. This mess of infighting, myopic strategy, and political maneuvering meant Congress failed to do anything to protect children online last year.

To be sure, there was and is, to be sure, a serious, substantive debate to be had over KOSA. Teenagers do have privacy and speech interests; but parents have interests as well. As a teenager, I resented anything that seemed like censorship or parental oversight; as a parent, I feel differently. Reasonable people can and do disagree over the balance that should be struck. But at some point, in a democracy, the vote needs to be called. Polls show that 70 percent of Americans and about 91 percent of parents want stronger legal protections for children online. If a majority, indeed a supermajority, of Americans want stronger protection for teenagers online, it is simply wrong to never call a vote.

I am well aware that part of the power of leadership and committee chairs lies in their control over the holding of votes. But that doesn’t make it less horribly undemocratic, and it is in these “non-votes” that the power of corporate lobbyists and special interests really makes its mark. That’s why what we need is some mechanism for a popular override—say, if legislation attracts more than 50 co-sponsors, leadership must hold a floor vote, win or lose.

It doesn’t help that there has been no political accountability for the members of Congress who were happy to grandstand about children online and then do nothing. No one outside a tiny bubble knows that Wicker voted for KOSA in public but helped kill it in private, or that infighting between Cantwell and Pallone helped kill children’s privacy. I know this only because I had to for my job. The press loves to cover members of Congress yelling at tech executives. But its coverage of the killing of popular bills is rare to nonexistent, in part because Congress hides its tracks. Say what you want about the Supreme Court or the president, but at least their big decisions are directly attributable to the justices or the chief executive. Congressmen like Frank Pallone or Roger Wicker don’t want to be known as the men who killed Congress’s efforts to protect children online, so we rarely find out who actually fired the bullet.

The American public has the right to be angry: Things are not okay. That said, other parts of government have done what they can.  The White House and FTC have tightened oversight using existing authorities. Some states have passed their own child-protection legislation, and this fall, 44 state attorneys general sued Instagram (Meta) alleging that the site knew its site was dangerous but promoted it as safe and appropriate anyhow. Both the children’s-privacy bill and KOSA were reintroduced this year, and the latter has picked up 48 co-sponsors, including prominent progressives like Elizabeth Warren. While vocal detractors remain, the major LGBTQ groups no longer oppose the legislation.

At this point both parties, the president, and the public want a law passed—which is why we need a commitment to hold a floor vote in both chambers. Protecting children is a fundamental role in any civilized state, and by that measure we are failing badly.

Read more here.

Tim Wu is a professor at Columbia Law School and a contributing opinion writer for The New York Times. He formerly worked at the White House and is a member of the American Academy of Arts and Sciences.

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