Bill aimed at protecting youth online advanced

A proposal meant to protect children’s private information and provide parental tools to monitor their online safety gained first-round approval from lawmakers Feb. 26.

LB504, introduced by Lincoln Sen. Carolyn Bosn at the request of Gov. Jim Pillen, would create the Age-Appropriate Online Design Code Act. Under the bill, a covered online service would be required to “exercise reasonable care” in protecting user data and in the design and implementation of covered online services to prevent harms such as compulsive use, severe emotional distress, identity theft and severe psychological harm.

A covered online service is defined as one that operates in Nebraska, is reasonably likely to be accessed by minors and meets certain revenue or volume thresholds. The bill would not apply to government entities.

Among other provisions, the bill would require a covered online service to provide users with “easy-to-use tools” that limit communications from other users, prevent the viewing of personal data, control in-game purchases and other transactions and place limits on the amount of time a user spends on the service.

LB504 also would place limits on data retention and sharing and would require a covered online service to treat all users as minors unless they have knowledge that they are not. Parents would be provided with the ability to view, manage and control a child’s privacy and account settings. The bill defines a “child” as an individual who is 13 or younger.

The state attorney general’s office would enforce the bill’s provisions and violations could result in a civil penalty of not more than $50,000 per violation.

Bosn said the proposal is the product of a bipartisan effort to give parents the tools they need to keep children safe online.

Social media has consequences for the neurobiological development and mental health of children, she said, and LB504 would implement some of the recommendations from a 2023 U.S. surgeon general’s advisory report aimed at curbing those harms.

“As a parent of young children, it is hard to stay a step ahead of every new opportunity to protect children’s privacy [and] mental health and keep them safe,” Bosn said.

Whitman Sen. Tanya Storer supported the measure, saying the data is clear regarding the addictive nature of social media and its negative impact on children. She said every young person that she’s spoken with on the issue has said it’s time to put some controls in place.

“We are losing a generation,” Storer said.

Several senators expressed concern that the bill would engage in content moderation of online speech that could result in First Amendment challenges.

Sen. George Dungan of Lincoln said the measure would require either the state attorney general or tech companies themselves, in an effort to avoid large fines, to engage in content regulation.

While supporting the bill’s overall goal of child safety online, Dungan said enforcement by the state’s attorney general could be problematic. He used the example of “infinite scroll,” arguing that the AG would have to determine if a covered online service leads to the negative outcomes outlined in the bill.

“What if somebody makes the decision that a covered design feature like infinite scroll is pushing LGBTQ content and a determination is made by the supervisory figure that that might lead to depression, so therefore that company is now in violation of that [provision]?” Dungan said.

Omaha Sen. John Cavanaugh echoed those concerns. He noted a section of the bill that prohibits “highly offensive intrusions on reasonable expectations of privacy.” Defining the term “highly offensive” is fundamentally subjective, he said.

“I think when you start making a determination about what’s offensive to some people you are inherently implicating speech,” Cavanaugh said.

Bosn pushed back on the assertion that the bill would regulate online content and free speech. She said LB504 was vetted by First Amendment experts and that she is confident it is constitutionally sound.

For example, she said, the bill would not regulate what is being advertised by a covered online service, but instead would regulate the use of algorithms that target ads to children based on their online usage.

“There is no content moderation in this bill,” Bosn said.

Sen. Mike Jacobson of North Platte said senators could disagree about the potential constitutionality of the proposal, but that the question cannot be resolved until the bill is passed. Lawmakers should move forward, he said, and give tech companies the message that the state is serious about protecting children online.

Cavanuagh offered and later withdrew an amendment to strike a provision granting the attorney general the power to promulgate rules and regulations under the Administrative Procedures Act to enforce the bill.

Doing so would be a “recipe for disaster,” he said, because the AG also is involved in the process of reviewing rules and regulations under the act.

Bosn expressed willingness to discuss the change, but said she did not want to strike the provision until another avenue could be found that would provide a rule and regs process that includes public hearings, so that tech companies have the opportunity to weigh in on regulations that would govern their conduct in Nebraska.

Following the 40-0 adoption of a technical amendment from the Banking, Commerce and Insurance Committee, lawmakers voted 38-0 to advance LB504 to select file.