Teen online safety has been one of Washington state’s hottest priorities in recent years. The issue is a rare one that unites Republicans and Democrats who agree on little else at a time of deep polarization. These proposals range from the constitutionally reckless, such as banning youth social media use entirely, to the constructive, building robust digital literacy programs that provide young people with important tools to navigate the online world. Unfortunately, Congress has been far more attracted to interventionist options than empowering options.
The desire to protect teens online has united Democrats and Republicans, but no proposals have reached the president’s desk. In the absence of federal action, state legislatures are scrambling to fill the void. State action has only produced a chaotic patchwork of legally questionable and practically unenforceable laws. The problem is real, and the Legislature has the right instincts to protect teens, but real solutions need to ensure that constitutional protections remain intact. Congress’ most recent efforts, the Kids Online Safety Act (KOSA) and the Parents Over Platforms Act, both failed that test.
Despite their proponents’ claims, both bills require unconstitutional age verification. KOSA’s “knowledge” standard imposes a blanket obligation whenever a platform knows or has reason to know that a user is a minor, creating an overwhelming incentive to verify age. The Parent-Over-Platform Act would be simpler, creating a centralized age-monitoring infrastructure that would task app stores with collecting, estimating, and transmitting age data for every app downloaded to every smartphone in the United States.
The evidence from abroad is damning. In the UK and Australia, age verification schemes have been heavily promoted and easily circumvented. Determined minors have found themselves facing restrictions, whether it’s dangerous corners of the internet or ridiculous websites offering historical art or information about smoking cessation.
KOSA’s duty of care provisions require platforms to take “reasonable care” to prevent a variety of harms, including eating disorders, anxiety, and compulsive use. This may sound sensible, but when the harm is teen anxiety, which is subjective by definition, reasonable care is often difficult to establish. This bill says nothing, because it can’t, and its vagueness risks inviting trial lawyers to sue some of the biggest corporations on the planet. Platforms facing unlimited liability do not carefully adjust their design decisions. Instead, they actively limit and exclude content.
This approach deserves more scrutiny than ever before. KOSA treats the causal relationship between social media use and poor mental health among teens as settled while it remains a matter of debate. Jonathan Haidt’s seminal work has been challenged by researchers such as Candace Odgers, whose findings suggest that this relationship is considerably more complex than previously believed. Laws premised on controversial science will ultimately miss out on real solutions to protect teens.
KOSA’s annual audit requirements further exacerbate the problem, imposing compliance costs that larger platforms can absorb but smaller competitors cannot. In reality, annual audits only strengthen the very platform they are regulating and ensure that no significant competitors emerge to compete against it.
Parental laws against platforms have their own problems. Its target application definition explicitly excludes internet browsers and web-based access, a loophole large enough to drive a generation of teenagers. Teens looking to circumvent the bill’s requirements can simply open an internet browser like Chrome or Safari to access the harmful content the bill seeks to keep teens away from.
Washington’s instincts are correct. Online safety for teens is a serious issue as parents across the country worry about what their teens are doing in the digital world. These concerns require real solutions that protect teens while upholding their sacred constitutional rights. What we don’t deserve is a federal law that mandates and regulates unconstitutional backdoor age verification, locks in sitting members of Congress, and confuses legislative activity with legislative accomplishment. Congress has spent a decade committed to protecting youth online. At some point, Washington’s promises must have some value.
Dr. Edward Long is director of the Center for Innovation and National Strategy Director at the James Madison Institute in Tallahassee.
