Children’s online safety is back on the agenda with the U.S. Senate Commerce Committee’s recent markup of the Kids Off Social Media Act (KOSMA). That bill would make social-media platforms liable for allowing kids under age 13 to create or maintain a profile.
But it’s worth considering whether KOSMA could possibly be effective if kids (and teens) continue to lie to create social-media profiles—sometimes, even with help from their parents. In attempting to avoid First Amendment limitations on online age verification, the law undercuts its own effectiveness.
Moreover, KOSMA would make social media noticeably worse for teen users by limiting platforms’ ability to curate content for them effectively. The end result would be increased incentive for teens to lie about their age as well.
KOSMA Would Likely Fail at Its Stated Purpose
KOSMA’s intent is clear from its title: to make sure kids are no longer able to make (or have) profiles on social-media platforms. The bill defines “kids” as anyone under the age of 13. This is easy enough, in theory, as most social-media companies already don’t allow those under age 13 to make profiles. This has long been the de facto standard, due to the high transaction costs of parental-consent requirements imposed under the Children’s Online Privacy Protection Act (COPPA) for collecting the personal information of anyone under 13 years of age.
The problem is that everyone knows that many kids lie in order to create social-media profiles. In fact, research commissioned by UK’s Office of Communications (Ofcom) suggests that as many as “a third of children aged between 8 and 17 with a social media profile have an adult user age after signing up with a false date of birth.” This includes “up to two-thirds” of 8 to 12-year-olds who “had help from a parent or guardian.”
In light of ubiquitous lying and parental help, there’s no simple or obvious public-policy solution. Ultimately, this is a Coasean problem: who can avoid the harms associated with social-media usage at the lowest cost?
KOSMA assumes the answer to that question is the social-media platforms themselves, and it would force them to internalize those costs by making them potentially liable if kids lie to create or maintain a profile. The law would require social-media platforms to take steps to remove not only those users they have “actual knowledge” are under the age of 13, but also all of those they have “knowledge fairly implied on the basis of objective circumstances.” This inclusion of a constructive-knowledge standard would likely lead many social-media platforms to create age-verification systems to avoid potential liability.
While the U.S. Supreme Court may reconsider its jurisprudence on this point, courts have consistently found (see here, here, and here) that online age-verification mandates likely violate the First Amendment. This is because such laws are not the least-restrictive means to protect kids from online harms, when there are many other tools available to parents to accomplish that same purpose. In Coasean language, minors and parents can avoid online harms at lower cost than the social-media platforms by using technological and practical means available to them.
But KOSMA explicitly states that it does not require age verification or age gating. Social-media platforms don’t have to collect personal information beyond what they are “already collecting in the normal course of business.” While this statutory language may help the bill to avoid First Amendment problems, it also severely undercuts the likely effectiveness of the proposed law.
Currently, all social-media platforms do on this front is to ask each user his or her when they create a new profile—usually, by offering a drop-down menu to input their date of birth. Some platforms will institute further measures in an effort to verify users’ ages. But as a general matter, the normal course of business is limited to the honor system.
KOSMA Will Make Social Media Worse for Teens
If this were the end of the KOSMA story, one might shrug off the legislation as likely ineffective, but ultimately harmless. But the proposed law also would put stringent limitations on “personalized recommendations systems” for users under age 17. Teens who want social media with full functionality will have increased incentive to lie about their age.
The Supreme Court has recognized that part of the entire point of social media is to provide an “expressive product” to users through the platforms’ process of curation:
When [social media] platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices. And because that is true, they receive First Amendment protection.
This is just as true for teen users, as knowing the age and interests of those users helps social-media platforms to curate more appropriate content.
While KOSMA does try to avoid some collateral censorship by allowing social-media platforms to provide content in response to specific searches, the limitations on “personalized recommendations systems” are stringent. KOSMA’s terms would appear to limit displays of user-generated content to chronological order, rather than based on any knowledge of what teen users may want to see. This also makes social media correspondingly less useful for those users, replacing an algorithm aimed at providing them with relevant content with something that would be less capable of providing that experience.
The most likely outcome of the legislation, beyond reducing social media’s value to teens, is to increase incentives to lie about one’s age. While KOSMA could put social-media platforms on heightened notice about user attempts to change their listed age, teens may respond by attempting to create alternate profiles. In the end, trying to save teens from social-media harms by delivering a worse product will likely backfire.
Conclusion
Social media is an attractive product to kids, even if they aren’t technically supposed to be on it. KOSMA is an attempt to put the onus on social-media platforms to prevent near-ubiquitous lying about one’s age. But the law is unlikely to be effective without an age-verification mandate. KOSMA’s authors would likely be better served by waiting to see whether and how the Supreme Court changes its mind on online age verification before moving forward.
The post Can You Actually Keep Kids Off Social Media Without Age Verification? appeared first on Truth on the Market.