“In Techno Parentis”: Who Should Regulate the Online Lives of Teenagers?

Second, and increasingly popular, is the kind of law I worked on while senior counsel for economic justice for New York State Attorney General Letitia James: banning particular functions. Her bill, sponsored by state Senator Andrew Gounardes and Assemblywoman Nily Rozic, is currently embroiled in the New York legislature’s budget negotiations. Governor Kathy Hochul strongly supports the law, but Big Tech is currently spending hand over fist to get it removed from the budget.

The bill would prohibit social media platforms from using “addictive feeds” without parental consent. Addictive feeds are the algorithms that unilaterally select what content children see, pushing what is likely to keep them online, based on their intimate data. It puts teenagers back in charge of organizing their own pages. The bill also includes a provision that would put limits on notifications (banning them at night, for example) and the monetization of children’s data. Other kinds of “function-based” approaches include bans on using any kind of data about geolocation, and could also extend to banning specific technical features, like infinite scroll, or the “speed filter” that tells children how fast they are moving (a function that led to several teenage deaths and a significant lawsuit). The Florida age-limited bill, passed last week, is a form of a function-based ban: It limits all social media functions for under-14-year-olds.

Third, there is the parental empowerment approach, which effectively provides technical enhancements to the legal status quo. These laws range from requiring platforms to give parents access to children’s social media accounts upon request to tools giving parents the ability to limit the number of hours children are online, or requiring parental consent before any social media account can be created for a minor.

Finally, there is the approach advocated by the Big Tech organizations, the ACLU, and some civil liberties organizations: self-regulation. For these organizations, any kind of law that limits what platforms can do in ordering content will necessarily regulate speech. The Electronic Frontier Foundation, for instance, argues that minors have a First Amendment right to access social media. It recently filed an amicus brief in support of Snapchat, arguing that Snapchat should be immune from lawsuits from parents of children who overdosed on fentanyl supplied by Snapchat-using drug traffickers.

Of all the approaches, the most dangerous is the last, the status quo. Right now, Big Tech companies often spend more time with children than their parents or schools do. The virtual spaces they control are not like playgrounds, parks, or libraries; Instagram is not providing a neutral space for play and exploration but actively engineering its users’ emotions, their connections, their choices, by selecting what they see when and how often. And no amount of social pressure will change the companies’ focus on the bottom line.

Our laws and society are very confused about teenagers—a social category invented in the postwar period with the spread of the car, but that has grown into something different. Are they little adults, big children? Their cognitive capacity is as capable as (if not more capable than) legal adults’, but their brains are in the most active social developmental period, and of all entities to turn their development over to, it would be hard to come up with an institution less well-suited to nurturing the development of adults in a democratic society than TikTok, Youtube, or Instagram.

Finally we need to confront the peculiar way in which the focus on the phones has been coded as more conservative—if not outright Republican—and thereforenot something that progressives and leftists should care about. Some of this comes from the libertarian streak within civil liberties organizations like the ACLU or the Electronic Frontier Foundation, who have been consistently skeptical of government regulation—even when it is government regulation of big, monopolistic tech companies. Some may come from the tribal tendencies and the old entanglement of Google with the Obama administration—a sense that while Google and other Big Tech may behave in problematic ways, they share our progressive values.

Whatever the reasons, this myth doesn’t bear much relation to reality. Progressives, at the vanguard of protecting children from dangerous industrial labor conditions, should also be at the vanguard of protecting children from having their most intimate data exploited for profit. The end game of Big Tech and children is radical isolation and addiction—the very opposite of the solidarity that defines a thriving open, democratic system.