Vermont may join a growing number of states attempting to enact guardrails on Big Tech in an attempt to protect minors online. A bipartisan coalition of lawmakers have sent so-called “Kids Code” legislation to Gov. Phil Scott’s desk that would require technology companies to adjust certain product safety features for users under 18.
Scott vetoed an omnibus data privacy bill last session, citing, among other things, the potential for the legislation’s “Kids Code” provision to trigger “high risk and expensive lawsuits.”
“Similar legislation in California has already been stopped by the courts for likely First Amendment violations. We should await the decision in that case to craft a bill that addresses known legal pitfalls before charging ahead,” the Republican governor wrote at the time.
But champions of this year’s bill, S.69, say they specifically rewrote their legislation to head off First Amendment concerns. State Rep. Monique Priestley said lawmakers stripped the bill of anything that they believed might be construed as content moderation and instead homed in on product design.
The bill is intended to require companies to set higher default privacy settings for minors’ accounts, and to restrict design features that encourage compulsive use, including endless scroll and push notifications.
“(We) ran it by a lot of First Amendment lawyers, so we're feeling very strong about it,” the Bradford Democrat said.
The bill doesn’t require the invention of new technology, Priestley added, but rather mandates that existing best practices be applied more universally. The bill is built “around what's already possible and what a lot of the most responsible programs are already doing,” she said.
Scott’s press secretary, Amanda Wheeler, said Wednesday the governor hadn’t yet made a decision about S.69 — but she suggested he was much more receptive to this version of the legislation.
“Last year his objections regarding the previous Kids’ Code provision were largely focused on first amendment concerns,” she wrote. “We’re hopeful this legislation will mitigate concerns raised and look forward to reviewing the legislation when it reaches the Governor’s desk.”
Tech industry lobbyists, meanwhile, are urging Scott to veto the bill. They’ve argued the bill’s language is overly broad, and that asking for users’ ages will actually undermine their privacy. And they’ve also claimed that companies will successfully sue Vermont.
“The Supreme Court has routinely held that the First Amendment protects the right of individuals, regardless of age, to access lawful expression,” Brianna January, a lobbyist for Chamber of Progress, an industry group, wrote to Scott in an open letter Monday. “S.69, through its content-based and speaker-based restrictions, unequivocally infringes upon these fundamental freedoms.”’
Vermont Attorney General Charity Clark, whose office has accused social media platforms in court of purposefully creating addictive products for children, has said she stands behind S.69. Vermont has learned from California’s mistakes, she told lawmakers in April.
“It’s always nice when someone else goes first. We can find out what speed bumps might be presented and avoid those. And this bill does that,” she said.
