It’s often good to use emotion in your marketing.
For example, when biometric companies want to justify the use of their technology, they have found that it is very effective to position biometrics as a way to combat sex trafficking.
Similarly, moves to rein in social media are positioned as a way to preserve mental health.
Now that’s a not-so-pretty picture, but it effectively speaks to emotions.
“If poor vulnerable children are exposed to addictive, uncontrolled social media, YOUR child may end up in a straitjacket!”
In New York state, four government officials have declared that the ONLY way to preserve the mental health of underage social media users is via two bills, one of which is the “New York Child Data Protection Act.”
But there is a challenge to enforce ALL of the bill’s provisions…and only one way to solve it. An imperfect way—age estimation.
This post only briefly addresses the alleged mental health issues of social media before plunging into one of the two proposed bills to solve the problem. It then examines a potentially unenforceable part of the bill and a possible solution.
Does social media make children sick?
On October 11, a host of New York State government officials, led by New York State Attorney General Letitia James, jointly issued a release with the title “Attorney General James, Governor Hochul, Senator Gounardes, and Assemblymember Rozic Take Action to Protect Children Online.”
Because they want to protect the poor vulnerable children.
And because the major U.S. social media companies are headquartered in California. But I digress.
So why do they say that children need protection?
Recent research has shown devastating mental health effects associated with children and young adults’ social media use, including increased rates of depression, anxiety, suicidal ideation, and self-harm. The advent of dangerous, viral ‘challenges’ being promoted through social media has further endangered children and young adults.
From https://ag.ny.gov/child-online-safety
Of course one can also argue that social media is harmful to adults, but the New Yorkers aren’t going to go that far.
So they are just going to protect the poor vulnerable children.
This post isn’t going to deeply analyze one of the two bills the quartet have championed, but I will briefly mention that bill now.
- The “Stop Addictive Feeds Exploitation (SAFE) for Kids Act” (S7694/A8148) defines “addictive feeds” as those that are arranged by a social media platform’s algorithm to maximize the platform’s use.
- Those of us who are flat-out elderly vaguely recall that this replaced the former “chronological feed” in which the most recent content appeared first, and you had to scroll down to see that really cool post from two days ago. New York wants the chronological feed to be the default for social media users under 18.
- The bill also proposes to limit under 18 access to social media without parental consent, especially between midnight and 6:00 am.
- And those who love Illinois BIPA will be pleased to know that the bill allows parents (and their lawyers) to sue for damages.
Previous efforts to control underage use of social media have faced legal scrutinity, but since Attorney General James has sworn to uphold the U.S. Constitution, presumably she has thought about all this.
Enough about SAFE for Kids. Let’s look at the other bill.
The New York Child Data Protection Act
The second bill, and the one that concerns me, is the “New York Child Data Protection Act” (S7695/A8149). Here is how the quartet describes how this bill will protect the poor vulnerable children.
With few privacy protections in place for minors online, children are vulnerable to having their location and other personal data tracked and shared with third parties. To protect children’s privacy, the New York Child Data Protection Act will prohibit all online sites from collecting, using, sharing, or selling personal data of anyone under the age of 18 for the purposes of advertising, unless they receive informed consent or unless doing so is strictly necessary for the purpose of the website. For users under 13, this informed consent must come from a parent.
From https://ag.ny.gov/child-online-safety
And again, this bill provides a BIPA-like mechanism for parents or guardians (and their lawyers) to sue for damages.
But let’s dig into the details. With apologies to the New York State Assembly, I’m going to dig into the Senate version of the bill (S7695). Bear in mind that this bill could be amended after I post this, and some of the portions that I cite could change.
The “definitions” section of the bill includes the following:
“MINOR” SHALL MEAN A NATURAL PERSON UNDER THE AGE OF EIGHTEEN.
From https://www.nysenate.gov/legislation/bills/2023/S7695, § 899-EE, 2.
This only applies to natural persons. So the bots are safe, regardless of age.
Speaking of age, the age of 18 isn’t the only age referenced in the bill. Here’s a part of the “privacy protection by default” section:
§ 899-FF. PRIVACY PROTECTION BY DEFAULT.
1. EXCEPT AS PROVIDED FOR IN SUBDIVISION SIX OF THIS SECTION AND SECTION EIGHT HUNDRED NINETY-NINE-JJ OF THIS ARTICLE, AN OPERATOR SHALL NOT PROCESS, OR ALLOW A THIRD PARTY TO PROCESS, THE PERSONAL DATA OF A COVERED USER COLLECTED THROUGH THE USE OF A WEBSITE, ONLINE SERVICE, ONLINE APPLICATION, MOBILE APPLICA- TION, OR CONNECTED DEVICE UNLESS AND TO THE EXTENT:
(A) THE COVERED USER IS TWELVE YEARS OF AGE OR YOUNGER AND PROCESSING IS PERMITTED UNDER 15 U.S.C. § 6502 AND ITS IMPLEMENTING REGULATIONS; OR
(B) THE COVERED USER IS THIRTEEN YEARS OF AGE OR OLDER AND PROCESSING IS STRICTLY NECESSARY FOR AN ACTIVITY SET FORTH IN SUBDIVISION TWO OF THIS SECTION, OR INFORMED CONSENT HAS BEEN OBTAINED AS SET FORTH IN SUBDIVISION THREE OF THIS SECTION.
From https://www.nysenate.gov/legislation/bills/2023/S7695
So a lot of this bill depends upon whether a person is over or under the age of eighteen, or over or under the age of thirteen.
And that’s a problem.
How old are you?
The bill needs to know whether or not a person is 18 years old. And I don’t think the quartet will be satisfied with the way that alcohol websites determine whether someone is 21 years old.
This age verification method is…not that robust.
Attorney General James and the others would presumably prefer that the social media companies verify ages with a government-issued ID such as a state driver’s license, a state identification card, or a national passport. This is how most entities verify ages when they have to satisfy legal requirements.
For some people, even some minors, this is not that much of a problem. Anyone who wants to drive in New York State must have a driver’s license, and you have to be at least 16 years old to get a driver’s license. Admittedly some people in the city never bother to get a driver’s license, but at some point these people will probably get a state ID card.
- However, there are going to be some 17 year olds who don’t have a driver’s license, government ID or passport.
- And some 16 year olds.
- And once you look at younger people—15 year olds, 14 year olds, 13 year olds, 12 year olds—the chances of them having a government-issued identification document are much less.
What are these people supposed to do? Provide a birth certificate? And how will the social media companies know if the birth certificate is legitimate?
But there’s another way to determine ages—age estimation.
How old are you, part 2
As long-time readers of the Bredemarket blog know, I have struggled with the issue of age verification, especially for people who do not have driver’s licenses or other government identification. Age estimation in the absence of a government ID is still an inexact science, as even Yoti has stated.
Our technology is accurate for 6 to 12 year olds, with a mean absolute error (MAE) of 1.3 years, and of 1.4 years for 13 to 17 year olds. These are the two age ranges regulators focus upon to ensure that under 13s and 18s do not have access to age restricted goods and services.
From https://www.yoti.com/wp-content/uploads/Yoti-Age-Estimation-White-Paper-March-2023.pdf
So if a minor does not have a government ID, and the social media firm has to use age estimation to determine a minor’s age for purposes of the New York Child Data Protection Act, the following two scenarios are possible:
- An 11 year old may be incorrectly allowed to give informed consent for purposes of the Act.
- A 14 year old may be incorrectly denied the ability to give informed consent for purposes of the Act.
Is age estimation “good enough for government work”?
Bredemarket 