Jerry Kilgore

Welcome to the fourth season of the State AG Pulse. In this season we’re diving into the state and federal political landscape in the run-up to the  general election. We’re talking with our colleagues at Cozen Public Strategies to uncover information and insights to help business leaders make better decisions.

Welcome everyone to another episode of the Cozen State Attorney General podcast. We are in season four and episode four of our podcast and I’m excited today to have with me Emily Yu, who is on our team and Stephen Cobb, who is a well-known participant in this podcast. I’m Jerry Kilgore, and we are excited today to talk about online safety and online issues affecting social media. We are hearing a lot about that from state attorneys general offices. And before I kick into talking about some issues that I’ve been working on, Stephen, what are you hearing about the online safety issues among state attorneys general?

Stephen Cobb

Jerry, thanks so much for having me. It’s always great to be back on the podcast. I’m not sure if well-known is the right moniker for me. Slight bit of hyperbole, but it is always great to jump in and have these conversations. as we dive in and we talk about the legal and policy implications facing some of these social media companies, I think this is an apt conversation. This is an area of going concern at the local, the state, and the federal level. We are not far removed from senior executives of all the social media companies testifying before Congress on their efforts and the challenges that they face when it comes to protecting children. And so this is a really apt discussion. And in that vein, Jerry, you recently published an op-ed really on this point, on this area.

Jerry Kilgore

Emily, I know you’ve done a lot of research on this issue as well and you might have thoughts here too.

Emily Yu

Yeah, Jerry, talking about the national age appropriate standard that the federal government can set is kind of, to echo your point from the op-ed, I think a better approach than having a lot of different state laws on this issue. We’ve already seen a lot of states introduce laws like this, but to the point that you made in your op-ed, it would just be really difficult for social media platforms and other online operators to comply with a patchwork of  different state laws. And there’s a lot to be said for a national standard and for Congress to act to make sure that this is actually enforceable and a regulatory regime that companies can actually follow.

Stephen Cobb

Right. There’s precedent here for both, right? So when we talk about coextensive enforcement authority, obviously that happens in antitrust, that is in environmental, there is a bit when it comes to data breach work between FTC and state AGs. So there’s obviously precedent for that. And there’s also for better or worse, precedent on the other side of patchwork regulatory schemes. And I think we look at data privacy as one of those areas where there is patchwork. And I think you could almost without exception go to any industry that does work in more than one state and ask them what they think about patchwork data privacy statutes and they will all to a “T” complain about the unnecessary hurdles that come along with trying to comply with a multistate patchwork regulatory scheme.

Jerry Kilgore

And that’s the point. I mean you hear all around the nation and we have a lot of experience on this team in dealing with data privacy and data breaches. And when you have  or so states that have different standards, different reporting requirements, it drives a company crazy. They’ve just been the victim of this hack or this breach, and then they all-of-a-sudden have to figure out  different laws. And there are more states coming up with their own data breach laws and privacy laws as we speak, as they’re in legislative sessions. And it’s just wreaking havoc on businesses and their ability to comply with all these laws. And we’re going to see that in this arena too, as states pass laws with the good goal of protecting kids online. And yet social media companies are going to have no idea how to comply. They’re going to have to read all these different laws, and I think we’re looking for one standard to apply here and one standard that can be enforced at the state and the federal level so that you don’t have power only resting in the federal government at the FTC.

Stephen Cobb

Yeah. Emily, Jerry, I want to play devil’s advocate just for a second. When we talk about a singular standard, how best do you think that fits when it would apply to such a variety and wide array of social media companies? I think one of the things that was hit on during the Congressional hearings is that these are all very different enterprises that have very different constituencies that are used in a myriad different ways. Jerry, one of the things that you talked about is less focused on the behavior of the platform and more at the app store choke point, is that one way to create a one-size-fits-all regulatory scheme?

Jerry Kilgore

It seems to be the only working solution here is that you have age verification and buy-in from parents and getting parents more involved at the app store level. It’s very difficult for… It’s going to be impossible, I would say, not even very difficult, impossible for social media companies to monitor and know the age of everyone coming onto the platform. People lie. People try to get in using other means and it’s unfortunate, but it happens. To have a duty of care that requires, puts all the burden on a social media company in this unworkable fashion, it’s just simply going to fail at the end of the day with what Congress really wants or the Senate really wants at this point. We’ll see what the House does with this, but I do think that having app store age verification rules would be more advantageous and get at the problem more than what we’re seeing with this legislation.

Emily Yu

What we’re really concerned about here is protecting children and teens. Setting up this age gating before they ever get to download these apps is the most workable way for protecting children on online platforms. It’s the best way to do it without getting into the nitty-gritty of how each individual social media platform operates because you can post and share and comment in different ways on each app, but if you have this standardized federal rule on age gating before you ever get into the apps, that is going to be the most workable way to regulate without having to navigate all of the intricacies of how each platform works.

Jerry Kilgore

And before we leave this topic… I mean the House just started having hearings on this at the subcommittee level and I’m not sure if the House can get anything done at this point, which may be good for social media companies and get folks more time if you will to look into these issues, to look into the need for dual authority with the state and federal level, look at the age gating issues, as Emily said, at the app store level. And I hope the House considers some of these options as they go forward because rushing to pass a Senate bill, it’s just going to bring on a host of state legislation so that state AGs and the states feel like they have power to enforce online safety for their constituents.

Stephen Cobb

And Jerry to that point, I don’t think this is even a hypothetical situation. This is already happening with states passing legislation to try and regulate what can and can’t happen on social media platforms. States like Texas and Florida have already jumped into this, which has led to constitutional challenges, as to what type of speech and what type of activity can and can’t be regulated and how. And so these have made their way up in a consolidated form to the Supreme Court and the NetChoice matters.

Emily Yu

In February, the Supreme Court heard arguments from Florida and Texas in regards to social media laws that were enacted in each state. And for both cases the court considered the following questions whether the laws’ content moderation restrictions comply with the First Amendment and whether the laws’ individualized explanation requirements also comply with the First Amendment. The Florida law established violations for social media deplatforming of political candidates or for journalistic expression and required social media companies to meet certain requirements when they restrict speech by users. The Texas law barred social media platforms with at least  million active users from blocking, removing, or demonetizing content based on users’ views. At the heart of both laws are issues related to content moderation and social media companies’ responses to individual expression.

Stephen Cobb

And so it’s going to be interesting. Well, one, we have a constitutional issues as addressed in NetChoice, but then there’s going to be the practical applications that come from that, right? And so whether that is federal legislation or whether that is a patchwork of states weighing in, I think the clock is ticking on the federal government to act in any sort of way, whether that be a focus on protecting children or anything that is more of an omnibus focus point because I don’t think Texas and Florida are going to wait once they’re given a ruling by the Supreme Court on what they can and can’t do. And once they do something, I think you’ll see, just like in the privacy space, another five to seven states move equally quickly. And my guess is that they will have at best overlapping policy implications, some might be diametrically opposed, and so you’re going to have regulatory schemes that are in friction with one another if the federal government doesn’t act.

Emily Yu

Stephen, to jump off your point from earlier, I think you’re right, the second the Supreme Court hands down a decision on the Texas and Florida cases, those two states are going to act immediately whether it’s going ahead and enforcing these laws or if the laws are stricken down, trying to come up with the next best iteration of this law that is going to pass constitutional muster. And I think you’re going to see other Republican-controlled states do the same based off of these examples. And you’re also going to see a response from more left-leaning states to combat whatever the court decides on these two laws. So I think after this decision comes down later this summer that you are going to see a flurry of activity both on the right and the left and this issue is going to just explode.

Jerry Kilgore

Yeah, absolutely no question about that. It’s going to be part of the… No matter how the Supreme Court rules, it’s going to become part of the campaigns in each one of those states. It’s going to be part of the campaign at the national level, at the presidential level, and it’s going to become part of this move, if you will, in all the other states. Suppose the laws are upheld, then every other blue state is going to enter the fray to attempt to mirror or combat what’s going on in Texas and Florida, and you’re going to see this dominate for a few weeks, the campaign trail.

Stephen Cobb

So that’s interesting, Jerry, can you expand on that a little bit farther and how you think this becomes a campaign issue?

Jerry Kilgore

Well, on the Republican side, it’s long been the issue that they want to… that social media companies are controlling what can be said and what can’t be said, and they’re deplatforming people and as much as social [media] companies have tried to go out and convince them otherwise, they still believe that and they still push laws that try to get at that, try to prevent that from happening. If the Supreme Court decides to uphold those laws, then you’re going to have a lot of blue states try to enter the fray to stop what they see might go on in Texas and Florida. It’s not going to be an easy decision for the Supreme Court at all. I will be surprised if they can get a majority vote on the particular issues that are going to be considered in the case.

Stephen Cobb

My prognostication, take it for what it’s worth, is I don’t think they’re going to be overly prescriptive. I think they’re probably going to make some findings but remand it for further evidence and it could find its way up again. I don’t think that they’re going to be in a huge rush to give a specified blueprint for how to restrict speech on social media companies. I think this is going to be a deliberative track where they send it back down and it comes back up and it gets knocked back and forth a few times.

Emily Yu

I think you’re right, Stephen and I think other states who are not Florida and Texas who are observing what the court does here in the summer, they’re going to take their own stabs at crafting legislation that they think will pass constitutional muster. So I think we’re going to only be seeing more activity on this both from the lawmaking front and also from… in the form of lawsuits challenging these laws that are inevitably going to be made after this decision comes down.

Jerry Kilgore

On the one hand, some states don’t want social media [companie]s to regulate speech, but then on the other hand, back to our earlier issue, they want social media companies to weigh in quickly and pull down speech if you will too. So it’s a tough situation to be in as a social media company right now.

Stephen Cobb

Right. As we pivot back to specifically talking about protecting kids on social media platforms, how much, if any of this, do you think – if social media companies took extra steps on their own, creating extra safeguards unique to their platforms – would preempt legislative action? Or do you think legislative action, be that at the state or federal level, is going to be inevitable in this case?

Jerry Kilgore

I think a lot of social media companies are working night and day to figure this out. It goes back to giving parents more control, making sure that there are guardrails if you will, as much as they can submit, making sure that they know they are kids, underage, on the platform, making sure they can’t talk to others outside their network, making sure strangers can’t direct message them and things of that nature. But it goes back to the difficulty that social media companies have in verifying age, and that should be at the app store level. And if we could just get that included in legislation, I think we’d be a long way down the road to providing safety on social media platforms for our underage kids.

Originally when the Kids Online Safety Act was being introduced and being sponsored by Senator Blackburn from Tennessee and others to get at this issue of online safety, it looked like there was going to be a good bipartisan working group in the Senate on this particular issue. But then a lot of progressive groups and others got upset, if you will, about the power being given to state attorneys general in enforcing the duty of care issue as it comes under that act. It’s state AGs that have been working on online safety for a number of years. It’s state AGs that are partners, if you will, with the federal government, the FTC and the other agencies on protecting consumers and others around the country. And I just didn’t see a good reason for excluding the state AGs and their enforcement power. State AGs have absolute consumer protection authority and to exclude them here, I submit, is just going to bring on additional state laws because KOSA does not preempt state laws.

And what you’re seeing now is Florida has passed their own law, other states have passed, are passing their own laws to protect children and online safety, and we’re going to have so many standards out there that it made sense for state AGs to be involved with the FTC and have enforcement authority here. I know some AGs are doing this, but I hope others do, to encourage parents to get involved with their kids’ screen time, if you will, participation in social media. Engaged parents do make a difference and we need to hope AGs are out there every day encouraging parents to be engaged in the life of their child on social media platforms and to talk about what’s appropriate and inappropriate. I grew up, I’m so old, I grew up with this stranger danger issue, but we only saw strangers out on the street. You see strangers now in your living room, in your bedroom through social media and parents need to be engaged in the life of their child to make sure that they are navigating social media correctly.

Stephen Cobb

Jerry, we can show our different ages here because if you’re a stranger danger, I’m “Just say no”. I’m not even sure what Emily’s generation…

Jerry Kilgore

Emily’s full-on social media generation.

Emily Yu

I know. My first online experiences were AOL Chat, AIM, so there was some online stranger danger there. To go off of both of your points from earlier about are these companies doing enough on their own to preempt some kind of state or federal response? As Jerry said earlier, social media companies do seem to be working day and night to put in a lot of their own parental control measures, but you’re also seeing state AGs bring lawsuits against certain social media companies and state AGs working with their state legislatures to address the issues of youth addiction to social media and especially mental health harms to teens from using social media.

So it seems that for as much as these social media companies are doing on their own, AGs have already started their efforts in both legislating to protect against these harms and also bringing enforcement actions against these harms, as we’ve seen them do most prominently with TikTok. There’s so many different states who have, individually and as multistate efforts, investigated or brought lawsuits against TikTok for these issues relating to addiction and mental and physical harms that they’ve seen affect the children in their states.

Jerry Kilgore

And couple that with the ownership issues that fire up more of the red states than the blue states, you have an all-out assault on TikTok going on right now for a lot of those issues, and that’s bleeding over, if you will, onto the other social media platforms.

Stephen Cobb

Jerry, how much of that do you think is because of the behavior on TikTok and how much of that do you think is because of foreign ownership?

Jerry Kilgore

I think it’s both. I think the foreign ownership is concerning, but let’s take the foreign ownership away and you still have issues going on, on the platform, that lawmakers and elected officials disagree with, they see leading to youth safety concerns, promoting unsafe behavior by copying, doing the latest TikTok challenge and things of that nature. So I do think there would still be a concern with some of TikTok even without the foreign ownership issue.

Stephen Cobb

Jerry, just for our listeners. Jerry, I think our listeners really want to know what your TikTok handle is and so that they can follow you for all of the latest TikTok trends and dances.

Jerry Kilgore

I am not on TikTok, so I cannot even give a handle to be on TikTok.

Stephen Cobb

Well, ladies and gentlemen, he will be by the time this podcast posts, and so we will look for a really cool handle for Jerry. Maybe it’ll be @AGKilgore or @CozenAGchair or something cool like that, and we’ll see if we can get him to do some TikTok dances and trends. That’ll be great.

Emily Yu

Yeah, I like this idea of trying to get Jerry to start the newest dance craze, but to your point, Stephen about do we think TikTok is catching a lot of flak because of its foreign ownership? I think that’s definitely part of it, but I think the other part of it is you haven’t seen, or at least we haven’t heard TikTok talk about taking independent measures of their own, unprompted from some kind of government investigation or lawsuit, like other social media companies have, to put in parental controls to limit teens access to certain hours of the day, or just to empower parents to get more involved in their teens’ use and to limit the types of feeds that children are getting or the types of users that they are being recommended to follow. You see a lot more of that happening on other social media platforms, and I think it’s the combination of TikTok not proactively taking those actions and also their ownership issues that have really garnered a lot of attention from AGs, specifically Republican AGs onto this one company as opposed to other companies who operate differently.

Stephen Cobb

Ladies and gentlemen, you heard here first and you heard it best from former attorney general and now chair of our State Attorney General practice Jerry Kilgore. Emily, thank you again for joining both of us. This has been another installment of State AG Pulse.

Jerry Kilgore

You have been listening to the State AG Pulse, brought to you by Cozen O’Connor State AG Group and the State AG Report. Please leave us a five-star rating and of course, tune in again in two weeks for our next episode.