Should Newsom be doing more to protect kids from social media harm?

During his time as governor, Gavin Newsom has not been shy about using the gubernatorial bully pulpit to prod lawmakers to take up causes he feels passionately about.

Advocates for greater regulation of social media sites like Meta, X, Instagram and Tik Tok hope this is the year he does the same for their cause as well. After all, they say, excessive social media use has been linked to any number of mental health issues in young people, from anxiety and depression to drug abuse.

It isn’t like Newsom has completely ignored the issue. The governor has in fact signed multiple high-profile bills related to children and social media regulation, including Assemblymember Buffy Wicks’ 2022 legislation, AB 2273, The California Age-Appropriate Design Code Act, and her 2023 bill, AB 1394, which holds social media companies liable for child sexual exploitation online.

In an email to Capitol Weekly, Newsom spokesperson Brandon Richards cited links to 19 news stories, social media posts and other websites intended to demonstrate Newsom and his wife’s commitment to battling social media’s harm to children’s mental health.

But while advocates publicly laud the governor for his support, they privately note that Newsom has taken much more aggressive action on a wide array of pet issues. From pushing for major reforms on mental health and homelessness, new taxes on Big Oil to a constitutional amendment on guns, the governor has repeatedly chosen to wade into the fray by either proposing a bill himself or calling on lawmakers to do so in his stead.

Is this the year he takes on Big Tech over social media?

“Indisputably, Governor Newsom has reinforced his national leadership on children’s social media issues by signing important and watershed bills,” says Jessica Heldman, the Fellmeth-Peterson Associate Professor in Child Rights at University of San Diego School of Law, in a statement to Capitol Weekly. “But, also indisputably, unlike many other states, California has yet to pass a comprehensive bill addressing social media harms to children such as last year’s SB 287 addressing addiction, fentanyl, and eating disorders. To ensure such a bill gets to his desk so he can sign it, Governor Newsom could place California in the national lead for kids by proposing or asking for such a bill.”

While advocates publicly laud the governor for his support, they privately note that Newsom has taken much more aggressive action on a wide array of pet issues.

He would certainly not be alone in doing so.

Last October, New York Gov. Kathy Hochul, a Democrat, joined with state Attorney General Letitia James and other officials to introduce a pair of bills that collectively would restrict “the collection of minors’ personal data and change how young users are served content online to reduce the harms of addictive features that keep children on social media longer.”

In Utah, Gov. Spencer Cox, a Republican, signed legislation barring social media companies from employing “addictive” features and requiring them to obtain parental consent before opening accounts for users under the age of 18. He also launched a public awareness campaign about such dangers.

And in Arkansas, Republican Gov. Sarah Huckabee Sanders endorsed legislation requiring social media companies to verify the ages of their users before it passed out of the legislature, saying she was concerned about “cyberbullies, inappropriate material [and] adults who prey on children.” She signed the bill into law in April.

According to the National Conference of State Legislatures, at least 35 states considered similar social media regulation bills in 2023, with 11 adopting laws or resolutions in that time.

That is a trend advocates like Josh Golin, executive director for Fairplay, a Massachusetts-based nonprofit group that works with both state and federal lawmakers in support of greater protections for kids online, would love to see continue.

“The fact that there is so much legislation, the fact that some of it has made it across the finish line, the fact that it’s not just lawmakers but also regulators that are really taking a hard look at these companies, really represents a pretty seismic shift,” he says. “Now, if most of this legislation doesn’t make it over the finish line, we may have had a really wasted moment and opportunity. But there’s no doubt that the policy landscape is significantly different than it was five years ago.”

Golin says part of the impetus is growing acceptance by lawmakers that the harm some kids encounter online is not “because their parents are lazy or stupid or because the kid are bad kids who are looking for things that they shouldn’t be looking for, but that the online experience for most kids is pretty fraught, and that the responsibility really lies with the platforms to change.”

And more and more, he says, policymakers are seeing the need to put that responsibility into statute.

But Jennifer Huddleston, technology policy research fellow for the Cato Institute says regulating social media is “a really complicated issue” that doesn’t lend itself to easy solutions.

“We’ve seen both sides of the aisle calling for legislation in both red and blue states and on both sides of the aisle in Congress,” Huddleston said.

But she noted both Republicans and Democrats have also expressed strong concern over how regulation could impact free speech or stymie the benefits of social media.

So too, have the courts. Legal challenges have been launched against almost all of the new restrictions, with the Arkansas measure and California’s AB 2273, the design code bill, already being held up by judicial rulings. A federal judge has also blocked a new Texas anti-pornography law that requires porn sites to verify their viewers are at least 18 years old, while another federal court has temporarily blocked a new Ohio law that requires Buckeye State teens to get parental permission to use social media apps.

The industry trade group Net Choice has also filed suit seeking to overturn the Utah laws.

Republicans and Democrats have also expressed strong concern over how regulation could impact free speech or stymie the benefits of social media.

All of which Huddleston says is for a good reason. She says social media offers children a voice and entrepreneurial opportunities they’ve never had in the past, and in spite of the harsh rhetoric research has not yet objectively proven a causal relationship between social media and children’s poor mental health.

In fact, she says, there still isn’t consensus on what “keeping children safe online” actually even means.

Moreover, says Aaron Mackey, free speech and transparency litigation director with the Electronic Frontier Foundation, the effort to do so is detrimental to both children and adults.

“What we’re seeing is that the legitimate concerns about privacy are basically being used as a way to then also bring in these other harmful proposals that restrict everyone’s access to information online,” he says. “The laws limit access to content by requiring people, mostly adults who have the lawful right to access the material, to provide their identification to do when maybe they would like to remain anonymous.”

A better option, he says, are more comprehensive data privacy laws that target protecting users of all ages, not just kids.

“A lot of things that people are most concerned about happening to kids can’t happen if you have a privacy law that says you can’t collect information from any user absent their affirmative opt-in consent coupled with strong enforceable rules on the backend that include private citizens being able to sue any company in court when they violate that.”

But with courts increasingly questioning the constitutional bona fides of these bills, Huddleston said there may be a growing recognition among leaders like Newsom that heavy-handed regulation may not yet be appropriate, at least pending further research.

“There’s certainly a lot more to be understood,” she said.

And more to be litigated. While Newsom so far has opted to keep his powder mostly dry on social media regulation, a bipartisan majority of state attorneys general have not. Last October, 33 AGs filed suit against Meta, saying the tech company that is the parent to Facebook and Instagram knowingly puts out features that present psychological harms to young people.

A federal judge later unsealed the complaint, which accuses Meta of harnessing algorithms and other “powerful and unprecedented technologies to entice, engage, and ultimately ensnare youth and teens” in the pursuit of profits, and ignoring “the sweeping damage these Platforms have caused to the mental and physical health of our nation’s youth.”

In a statement after the unsealing, Bonta said “Meta knows that what it is doing is bad for kids – period. Thanks to our unredacted federal complaint, it is now there in black and white, and it is damning. We will continue to vigorously prosecute this matter.”

But even some major advocates for change question the proposals seen to date.

Larissa May, founder of #HalfTheStory, a California nonprofit that works with schools, governments and private sector companies on ways to encourage youth to have a healthier relationship with social media, echoes concern about a lack of agreement on how to address the issue.

“I think we have a challenge here in America in that there’s not a consensus on what we actually need to do to solve this problem,” she says.

May, who formed #HalfTheStory after her own battle with social media addiction, says bills too often take a myopic approach that gives short shrift to evidence-based solutions.

“The reality is that these bills are not being grounded in data,” she says. “We’re not bringing together people in a room and saying, ‘This is the quantitative, qualitative and fiscal outcome that is going to happen from passing this bill.’”

States are also not the only game in town. Congress and the president have weighed in as well.

I think we have a challenge here in America in that there’s not a consensus on what we actually need to do to solve this problem.

In a January 2023 op-ed in the Wall Street Journal headlined “Republicans and Democrats, Unite Against Big Tech Abuses,” President Joe Biden wrote, “The risks Big Tech poses for ordinary Americans are clear. Big Tech companies collect huge amounts of data on the things we buy, on the websites we visit, on the places we go and, most troubling of all, on our children. As I said last year in my State of the Union address, millions of young people are struggling with bullying, violence, trauma and mental health.”

Two bipartisan bills are also pending in Congress. One, U.S. SB 1409, The Kids Online Safety Act, or KOSA, would impose a “duty of care” responsibility on even small websites, requiring them to screen out content that could possibly cause anxiety or depression, or encourage drug use among minors. The other, U.S. SB 1291, the Protecting Kids on Social Media Act, would implement much of KOSA as well as some of the major tenets of bills passed in the states in 2023, including requiring social media companies to verify the age of all their users (including adults), ban users under age 13 and require parental consent for users between 13 and 18, and bar the use of minors’ data in social media algorithms.

Fairplay’s Golin says he is optimistic about both bills’ chances, even in an election year and with a Congress roiled by hyperpartisanship.

“The fact this is an election year, while it certainly makes the calendar shorter and the politics more complicated, I actually think works in our favor. This is an issue that parents care tremendously about,” he says.

And Golin welcomes it when state lawmakers can give their brethren in Congress a healthy push.

“I definitely think it lights a fire under Washington when states like California are innovating on policy,” he says.

Not everyone agrees, however. May for one questions the efficacy of bills that seek to impose age limits on social media use.

“If kids can go and get fake IDs and buy alcohol, what makes you think that they can’t go on a different VPN or log into something? It could not be easier for a kid to break in or make up a fake birthday. It is actually 10 times easier than it is to get a fake ID,” she says.

She also contends that most of the proposals are already hopelessly outdated, ignoring the impact of technologies like artificial intelligence.

So, if current proposals won’t work, what will?

May believes lawmakers should consider using the same kind of “carrot over stick” approach they use to get industries in line with environmental goals addressing climate change.

“How did the government incentivize companies to actually contribute to this? They said, if you invest in these things in your business, because we know it cuts your bottom line, we’re going to give you tax incentives. Instead of going to war with the arms race of our generation, which is social media, let’s get on the same team and invest in what the real outcome is that we need, which is better mental health outcomes for our youth,” she says.

If kids can go and get fake IDs and buy alcohol, what makes you think that they can’t go on a different VPN or log into something?

But she also notes that achieving that outcome entails a real commitment from governors in every state, particularly Newsom.

“I think this is the year that the governors need to step in and start making this a priority and making their own bills, because if we do not have that executive leadership that’s saying, ‘Hey, this is a problem and this is what I’m doing about it,’ beyond just suing people, there’s no way forward,” she says.

Golin agrees.

“As we saw with comprehensive privacy, as we saw with the age-appropriate design code, California is often the leader in these issues,” he says. “And that’s incredibly important. So, it is definitely my hope that California doesn’t stop with the Age Appropriate Design Code.”

And if incentives really are key here, Golin offers one that political animals will likely appreciate.

“Our polling shows social media regulation as the third-most important issue for parents aligned with either party,” he says. “For Democrats it’s the economy and climate change, and for Republicans the top two are the economy and border. But with both social media and online protections for kids are number three.”

Making it an issue neither side can afford to ignore.