It was inevitable that President Biden would mention Big Tech during his State of the Union speech. The only question was on which policy issue he would focus.
The Biden administration’s tech policy target soon became clear when he said, “It’s time to strengthen privacy protections, ban targeted advertising to children, demand tech companies stop collecting personal data on our children.”
With Biden calling specifically for children to be better protected from online harms, the one nagging question is what it will take for Congress to address privacy in a meaningful way.
It’s heartening for both privacy and child-safety advocates that the administration has repeatedly signaled that it wants privacy legislation. Across the political aisle, Republican and Democratic leaders have long been advocating for meaningful privacy legislation. Consider Rep. Cathy McMorris Rodgers, R-Wash., or Rep. Kathy Castor, D-Fla., both of whom have long pushed for children’s privacy protections (especially online) to be strengthened. There is clear bipartisan consensus on this issue, and there’s a clear opportunity to not only update existing laws but to develop legislation that will protect all Americans and help avoid a privacy patchwork of state laws.
This united support is further evidence that a strong federal privacy law is what Congress should focus on, rather than bills that inherently weaken privacy. Two such bills, the American Innovation and Choice Online Act and the Open App Markets Act, recently passed out of the Senate Judiciary Committee, would undermine child safety. Both bills are singularly focused on “self-preferencing” behavior, which occurs when a platform spotlights its own products over competitors. However, in their quest to protect corporate competitors, the bills’ sponsors failed to consider consumer privacy.
The Open App Markets Act zeroes in on Apple and Google’s app stores, reducing their ability to moderate harmful content by allowing any app developer to take the companies to court via private rights of action, regardless of cause. For example, if Apple or Google were to remove or reject an app that was an educational children’s game designed to dupe kids into making purchases, that app maker could then sue the platform directly. In their efforts to police dangerous, misleading or even illegal apps, Apple and Google would have to weigh every content moderation decision against the likelihood of litigation.
Furthermore, the bill’s mandate that platforms must allow software to be downloaded outside their app stores would render the app review process ineffective and cripple the security protections and parental controls that are dependent on a centralized software distribution point.
Both Apple and Google offer a suite of parental controls. For Apple, this includes safeguards like “Ask to Buy,” which allows people to approve any purchases a child makes across the Apple ecosystem. There’s also Screen Time, which enables the user to limit how much time a child spends on a device or within specific apps and restricts their access to potentially explicit content.
These are common sense tools created to prevent a family from nightmare scenarios. Their efficacy and even existence is now at risk.
The two pieces of legislation would also provide a workaround for the privacy controls that app stores have put in place to limit personal data collection. These are the same controls that prevent Facebook from tracking you across apps and websites without your consent. The proposals would diminish the transparency, autonomy and protective measures consumers value most. It’s also worth noting that both bills were marked up without a hearing, which would surely have exposed the privacy issues they invite.
Now more than ever, it is important for leaders to address children’s privacy. It’s not simply a matter of developing a federal privacy law. It will also require identifying the flaws in existing antitrust bills that would actively make matters worse and children’s privacy and safety less secure. The president is asking for privacy legislation to land on his desk. It is time for Congress to answer the call.
