Protecting Children Online: Keep Parents in Charge

Before I was married and a parent, I would write with high dudgeon about the defects of involving government in the business of child-rearing. In 2002, for example, I wrote about the Children’s Online Privacy Protection Act, which requires “verifiable parental consent” before a website or service collects personal information from a child under 13:

Many children will lose access to valuable educational content and healthy online interaction. These will tend to be the children of poor, non-English speaking, or absentee parents. Other children will learn that lying about their ages gives them access to worlds that other children enjoy. Either way, COPPA shows again that their [sic] is no substitute for parenting, online or off.

Via Adobe Images

Decades later, with the chastening wisdom of experience, I can now say . . . I was right!

[Also, I am still interchanging homophones.]

This week, the Program on Economics & Privacy (PEP) at the Antonin Scalia Law School’s Law & Economics Center and the Marion B. Brechner First Amendment Project at the University of Florida’s College of Journalism and Communication filed a comment on amendments to the Children’s Online Privacy Protection Rule recently proposed by the Federal Trade Commission. I was pleased to work on it with lead coauthors Jane Bambauer of the First Amendment Project and James Cooper of PEP.

The comment notes that “a growing empirical literature finds a causal link between reduced revenue for online platforms due to privacy regulations that restrict information flows and lower levels of output and quality.” That, with citations, is a fancy way of saying that regulations like these reduce the content available for kids and make it lower in quality.

Keeping kids off screens is a good instinct. But we are not animals! (Well, kids kind of are.) The FTC should research, not presume, what happens for children with less access to less interesting content.

We elites might make sure they read books or play outdoors. But not everyone has a safe patch of grass to which they can send their offspring. “It is far from clear,” in the words of the comment, “that in response to making online services less numerous or attractive, children would substitute activities that are more beneficial (e.g., sports, music, or studying) rather than moving to lower-quality online content or other media, such as television or video games.”

What’s exciting to me about this comment is the recognition of the FTC’s rather clear move into speech regulation. The COPPA law set out a system of notice and consent. The FTC was to require full notice of information policies with respect to information about kids, then oversee companies in collecting parents’ okays. Whatever the defects of doing so in a mandated process rather than at home among family members, at least parents had the final word. That insulated COPPA from First Amendment challenges.

The FTC is now introducing or expanding regulation of speech. Sprinkled into the COPPA Rule’s baroque system of notices, permissions, and exceptions are various caveats about what companies can and cannot use information for. Certain information about children shall not be used “to optimize user attention or maximize user engagement,” for example.

The comment:

Terms like “engagement” or “attentional resources” can create some rhetorical distance from free speech, but in fact, all speakers try to maximize the engagement of their listeners. Engagement is necessary for the noble goals of political discourse, education, and exchange of ideas as well as for the ignoble-but-necessary goal of paying for the effort to create all that speech.

In this Information Age, many of the more important businesses are involved in the creation and transmission of information and speech. The regulations that might analogize to bumpers and rounded corners on physical products are regulations of speech products. Such regulations will and should have to meet high First Amendment standards. That means showing that they address real harms head-on. No matter how beneficent the intentions, the FTC should not assume to address a broad class of problems with solutions that are not backed by good evidence. Haggard and exhausted parents should be in charge unless there is a regulatory process that is clearly better than them.

My outlook has changed in some areas since I youthfully attacked government regulations such as COPPA. When I saw friends of mine parenting and raising children, I realized that this area should be controlled by strict governmental licensing. I would not have it administered by the FTC, of course, but by an entirely new cabinet-level agency. I am surprised that our species has survived as long as it has without one.