As Regulation of Teens Online Increases, So Do Challenges and Workarounds, Panelists Say
As some regulators expand their focus on protecting children online to include teens, industry is complying with new laws while seeking workarounds and/or challenging regulation in courts, panelists said during a Morrison Foerster webinar Monday. The struggle will continue for a while, they added.
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“13- to 18-year-olds are one of the most important demographics for advertisers and brands, because … this is the age when [companies] create brand awareness, and many [teens] have pretty significant purchasing power,” said Boris Segalis, partner at Morrison Foerster. Also, while regulation may "seem ... narrowly tailored" to protect teens, in reality it covers "a much broader spectrum of companies than one would expect ... [making] it much more difficult to arbitrage these requirements.”
For example, the recent New York Child Data Protection Act (see 2506180061) limits processing of personal data to what's strictly necessary to provide services, Segalis said. Guidance about the Act omits advertising, he noted. “When there's prohibition on advertising, it's really talking about using personal information for advertising,” or imposing limits on it. Segalis said "it's possible for businesses to advertise ... without using personal information.” Contextual and programmatic advertising, for example, can be used instead.
Jina John, policy counsel at the Lawyers Committee for Civil Rights Under Law, said such regulations aren’t an “attack on businesses or advertising" but are "a genuine attempt to address public concerns about ... [a] teenage mental health crisis.”
Alexander Lawrence, a partner at Morrison Foerster, noted that when covered platforms and businesses fight regulation with litigation, the courts are "going function by function, determining whether [a law is] constitutional or not and whether the statute still holds up and can support itself" after some provisions are struck. For example, he said the U.S. Supreme Court's 2024 decision in Moody v. NetChoice (see 2407010053) ruled that a law as applied must violate the First Amendment for it to be unconstitutional; a law on its face cannot violate the First Amendment.
A federal court enjoining parts of a Mississippi age-verification law last week (see 2506180051) and another court enjoining pieces of a similar Arkansas law (see [Rfe:2504010044]) are examples of the Moody analysis, Lawrence added. Despite the fact that "a lot of these laws have been enjoined for now ... it doesn't mean that's the last word,” he said.
Melissa Crespo, another Morrison Foerster attorney, said the existence of teen privacy litigation does not excuse companies from compliance and being proactive and transparent about data practices. She mentioned assessing applicability, risk mapping and determining what privacy settings are default. She expects to "see more multi-state, AG action [and] consumer protection investigations" surrounding teen privacy.