Today, we’re wrapping up our series “The Infinite Scroll,” where we look at kids’ lives on social media and the risks and rules they face. One approach some states take to creating rules to mitigate risk is known as an age-appropriate design code, a law that puts the onus on tech companies to design products that keep kids safer when they’re online.

California passed its Age-Appropriate Design Code Act in 2022, as did Maryland last year. Both have been challenged by lawsuits from the tech industry. State Delegate Jared Solomon, a sponsor and lead author of the Maryland law, explained to Marketplace’s Stephanie Hughes that the oversight effort attempts to prevent manipulation by algorithms. He hopes the industry will begin to “think differently about how they design their products.”

The following is an edited transcript of their conversation.

Jared Solomon: So the first part is to sort of create a series of bright red lines, of things that companies with large online presence over a certain amount of people, over a certain amount of revenue, are not allowed to do. And it is things like not allowing minors to be geotracked, to make sure that the privacy settings on whatever app is as private as possible, that their data and information can’t be sold. And then the sort of broader piece is really getting tech to think differently about how they design their products. And that’s the part of the bill that hasn’t quite gone into effect yet, but is really thinking about, if you have a product that is being used by minors and you know that it could be causing harm, you have to do everything you can to make sure that that’s not happening. When we think about some of the examples with social media companies, where they very deliberately knew that their products were addictive, that they were designing their products in a way to play on the brain chemistry of young people, that wouldn’t be allowed anymore.

Stephanie Hughes: One part of the law, as you mentioned, requires tech platforms to default to a high level of privacy for Maryland residents who are under 18. Would this affect what kids can see or what they can share, or both? Does it depend on the app?

Solomon: It depends on the app. So, for example, one of the things is allowing anonymous people to post on your social media posts, and so that would not be allowed. Your posts would be private unless you choose to allow them to be public.

Hughes: The law also requires companies to complete data protection impact assessments. Tell me what that means.

Solomon: So the requirement to complete that is actually only if you want to have the safe harbor provision that we have in the bill. So one of the things that was really important to us was that this bill is not meant to be a gotcha, it’s not meant to rack up big fines to fund our budget. It is really meant to make online spaces safer for kids. And so these design codes, the analysis, is really meant for companies to look at, again, what are the potential harms that their products could cause? And if you want to get the provision where we will give you essentially a 90-day period to fix the mistakes, you have to do these assessments. If you don’t want that, if you just want to take your chances with the attorney general, who is ultimately responsible for enforcing our bill, you don’t actually have to. But again, we think this is sort of the best practice. And in working with a lot of tech companies as we were writing this legislation, this isn’t about getting anybody or attacking anybody. It’s about figuring out, how do we make these online spaces safer for kids and give companies the room to be able to innovate without feeling like they’re being attacked or overly burdened?

Hughes: What happens if tech companies don’t comply with this law?

Solomon: They are subject to the penalty provisions that are in the bill that are similar to consumer protection laws that we have on the books in other areas in Maryland.

Hughes: They’re fined, essentially?

Solomon: Correct. I mean, ultimately, we hope that these companies — we want to take them at their word. And again, almost all the companies we worked with said, we want to do right by young people. But if you’re not, and if you’re flouting the law, we’re going to make sure that you pay a penalty.

Hughes: NetChoice, a trade group that represents some of the biggest social media companies, including Meta and YouTube, which is part of Google, is suing to block the law, saying it restricts free speech. What do you think of that?

Solomon: We were very clear in working on this bill that it is not meant to be a content bill. We literally took any reference to content out of the legislation, except to say that nothing in this bill shall be construed to remove a young person’s access to content. So this is really about the algorithms and the way in which companies are manipulating people with those algorithms. They’re manipulating them with the harvesting of their data. We are not suppressing speech. We are not suppressing content. There’s nothing in this bill, again, that would impinge on the First Amendment for any young person to find content on the internet. What we don’t want to have happen is when a young person is looking for content, they are then pushed to things that they would not be looking for on their own. And so, again, we were very conscious of the litigation going on in California with the original California kids code, and we made a lot of significant changes. We worked with a team of appellate lawyers to make sure, and First Amendment experts to make sure that this bill did not run afoul of those issues. We worked with our attorney general. So it’s really disingenuous, in my view, for NetChoice to attack us the way they have. I think this all comes back to the fact that many of the companies that are part of their organization just do not want regulation. So it’s curious to me that NetChoice, which is, frankly, a front group for a lot of these Big Tech companies, where their litigation arm is funded by their members, would say the kind of, I think, disingenuous things about our bill.

Hughes: You could argue it’s not the tech companies’ jobs to set the settings for minors, that the parents should sort of go in and get involved. What would you say to that argument?

Solomon: I mean, when we know that some of these companies are absolutely manipulating their designs and their products to make them more addictive, to make them more likely to hook the users, and frankly, literally, they have an army of people who are doing this. It’s not to say that, that parents are not part of the equation and in no way, shape or form do we think our bill is a panacea, that it will solve every single problem, but it’s a big part of that equation. So obviously, we need to educate parents. We need to educate young people on how to use their devices appropriately, what kind of ways they’re being tracked so they understand. But the idea that this needs to fall only on parents or only on the device user, when companies know exactly what they’re doing, again, when they have an army of some of the smartest people in the world who are manipulating code and designing these products in a way that make them addictive, it just doesn’t seem appropriate. Again, you know, I liken this to we required car manufacturers to put seat belts in. You could argue that, you know, every driver should be going the speed limit, but we know that’s not the reality. And so we legislated, we legislated seat belts because that was a public safety and a public health, a public health imperative.

Hughes: If the kids code is declared unlawful, what are you going to do?

Solomon: We we’ll come back and we will figure out how to, how to change it. You know, again, we were very cognizant of the litigation ongoing in California. You know, we introduced the original bill in 2023, the final version passed a year later. So we had an entire interim period in our legislative session where we’re out of session for nine months, where we worked really closely, again, with appellate lawyers to make sure that we made changes to the bill based on the litigation going on in California. So we think we’re on pretty solid ground. But there is a severability clause in the bill that says if one part of it is ruled unconstitutional, that the other parts of the bill can still go forward. Or maybe it’s not specifically in the bill, I think that’s just kind of general code in Maryland with our laws. But if there’s a court ruling that goes against where we think we’ll end up, we’ll be right back sitting down with folks who are experts in the field to make sure that we’re getting this right. But again, this is an issue I hear in every parent group that I talk with, in organizations and educational circles across the community, across my community, across the state. I hear from students and young people that this is a really important issue to them, so we’re not, we’re not going away.

Hughes: What do you see as the future of regulation around kids on social media?

Solomon: I mean, I hope it’s this. We’re not limiting freedom of speech. We don’t want to ban people from these platforms. There are a lot of really good things that our technological advances and that social media has brought. I mean, we’re not the first. The United Kingdom and Europe has these protections in place, and the internet has not ceased to exist. Young people are still using these platforms. They’re just using them in a way that makes it safer for them.

In a comment to “Marketplace Tech,” NetChoice said: “To protect kids online, law enforcement needs to be given the necessary resources to put predators in prison. Tech companies are not the police, and risking privacy and regulating speech like Maryland’s Speech Code does is not the way to solve this problem.”

If you or someone you know is struggling with online harassment or cyberbullying that has resulted in mental health problems or suicidal thoughts, please call or text the 988 Suicide & Crisis Lifeline or visit the 988 Lifeline website.