For the past several years, teen online safety has been one of Washington’s hottest priorities; a rare issue that unites Republicans and Democrats who agree on little else in an era of deep polarization. These proposals have ranged from the constitutionally reckless – banning teenagers from using social media outright – to the constructive – building robust digital literacy programs that give young people the critical tools to navigate an online world. Unfortunately, Congress has been far more drawn to the interventionist options than the empowering ones.
Although the desire to protect teens online has unified Democrats and Republicans, no proposal has reached the president’s desk. In the absence of federal action, state legislatures have rushed to fill the vacuum. State activity has only produced a sprawling patchwork of laws that are legally suspect and practically unworkable. The problem is real, and legislatures have the right instinct to protect teens, but any real solution must also ensure constitutional protections remain intact. Congress’s latest attempt, the Kids Online Safety Act (KOSA) and the Parents Over Platforms Act, both fail that test.
Despite their sponsors’ claims, both bills mandate unconstitutional age verification. KOSA’s “knowledge” standard would trigger sweeping obligations whenever a platform knows, or has reason to know, that a user is a minor, and would create an overwhelming incentive to verify age. The Parents Over Platforms Act is more straightforward, deputizing application stores to collect, estimate, and transmit age data across every app downloaded on every smartphone in America, creating a centralized age-surveillance infrastructure.
The evidence from abroad is damning. In the United Kingdom and Australia, age verification regimes have been pursued with considerable fanfare and circumvented with ease. Determined minors have found themselves facing restrictions, whether on dangerous corners of the internet or just on absurd websites that provide information about historical art or quitting smoking, facing restrictions.
KOSA’s duty of care provision requires platforms to exercise “reasonable care” to prevent a multitude of harms, including eating disorders, anxiety, and compulsive usage. While this may sound sensible, it’s often difficult to establish reasonable care when the harm is a teenager’s anxiety, which is by definition subjective. The bill does not say, because it cannot say, and that vagueness is an invitation for trial lawyers to sue some of the biggest companies on earth. Platforms facing open-ended liability will not carefully calibrate their design decisions; instead, they will restrict content aggressively and err on the side of exclusion.
The approach deserves more scrutiny than it has received. KOSA treats a causal link between social media use and declines in teen mental health as settled when debate remains. Jonathan Haidt’s influential work has been contested by researchers such as Candice Odgers, whose findings suggest the relationship is substantially more complex than previously believed. Legislation that is premised on contested science will ultimately miss the real solution to protecting teenagers.
KOSA’s annual audit requirements compound the problem, imposing compliance costs that larger platforms can absorb and smaller competitors cannot. In practice, an annual audit will only entrench the very platforms it purports to regulate while making sure no serious competitor ever emerges to challenge them.
The Parents Over Platforms Act has problems of its own. Its covered application definition explicitly excludes internet browsers and web-based access, a loophole large enough to drive a generation of teenagers through. Any teen seeking to circumvent the bill’s requirements would only need to open an internet browser like Chrome or Safari to access harmful content that the bill seeks to keep teens away from.
Washington’s instincts are right: teen online safety is a genuine problem, as parents across the country worry about what their teens are doing in the digital world. Such concern deserves a genuine solution that protects teens while also protecting sacred constitutional rights. What it does not deserve is a federal law that mandates unconstitutional age verification by the back door, entrenches the incumbents it claims to regulate, and mistakes legislative activity for legislative accomplishment. Congress has spent a decade promising to protect teens online. At some point, Washington’s promise has to be worth something.
Dr. Edward Longe is the director of the Center for Technology and Innovation and the director of national strategy at The James Madison Institute in Tallahassee.
