Why Pa.’s efforts to regulate social media companies have failed so far

Despite bipartisan interest in setting ground rules for social media companies, Pennsylvania lawmakers are struggling to reach a consensus amid privacy and other concerns that don't neatly break down along party lines.

In recent months, the legislature has debated bills that would mandate disclosure of artificial intelligence-generated images, ban TikTok from state-owned phones, and require monitoring of minors' social media. The debate around the latter most clearly demonstrates the balancing act legislators are trying to achieve.

Social media can help young people find community, but can also expose them to disinformation and hate speech, and encourage them to self-harm, according to the American Psychological Association.

From California to Ohio, red and blue states alike have passed laws that attempt to combat this by requiring age verification and parental consent to use apps.

NetChoice, a tech industry group whose members include Meta, TikTok, and X, has challenged many of these laws in federal court, sometimes with the backing of civil liberties groups like the ACLU. Several suits have succeeded.

In one, a federal judge last August issued an injunction blocking an Arkansas parental consent law from going into effect until the courts settled the matter.

In his opinion, U.S. District Judge Timothy Brooks wrote that NetChoice was likely to succeed in its First Amendment challenge. He added there was no evidence that the law would “protect minors from materials or interactions that could harm them online.”

Regulating speech is tricky under the First Amendment, says Megan Iorio, senior counsel at the Electronic Privacy Information Center, a nonpartisan advocacy group in Washington, D.C. In a March interview with Marketplace, she argued there is “no privacy-protective way” to verify a user's age.

But placing the onus on parents to mitigate the harm of opaque social media algorithms is also “not how things should work,” she added.

“The government should be able to pass regulations to prevent harms to kids,” Iorio said.

Parents versus privacy

This session, legislative leaders in Pennsylvania have attempted to thread this needle with two bipartisan bills. But both efforts have stalled amid tech lobbying and a wide swath of concerns from both major parties.

In March, state House Democrats advanced a bill sponsored by state Rep. Brian Munroe (D., Bucks), who represents a suburban Philadelphia swing district.

Like other states’ proposals, the bill would require social media companies to verify users’ ages and obtain parental consent before anyone 16 or younger opens an account. It would also allow parents to restrict how much their children use an app by allowing parents to view their kids' privacy settings or set time limits on an account’s use.

Additionally, it would prohibit the collection or sale of a minor’s browsing history, require that such users opt in to algorithmic recommendations, and make it unlawful for a social media network to “intentionally, knowingly, recklessly or negligently cause or encourage a minor to access content which the social media company knows or should have known subjects one or more minors to harm.” The provisions would be enforced by the state attorney general.

Munroe told Spotlight PA the idea for his proposal came from a project by local high school students on social media’s mental health impacts.

Parents, Munroe said, do give a level of consent to tech companies when they provide a phone to a child. But “once I give that to you, it's a jungle,” he said.

“We need to be able to offer tools that are going to make it more mainstream for parents to be able to have a say in what their children are involved in,” Munroe added.

Controversially, the bill accomplishes this in part by requiring social media companies to monitor any group chats on their platforms that involve two or more individuals aged 16 or younger. If the company finds any “chats, posts, videos and images that are deemed sensitive or graphic” under a platform's terms of use, the company must report the content to the minor’s parent or legal guardian.

That provision drew the opposition of the Pennsylvania chapter of the ACLU, which argued in a memo to lawmakers that the bill would “invite parental surveillance,” define harm in “broad, subjective, and unenforceable ways,” and “likely have dire consequences for young people.”

One of tech’s biggest lobbies, TechNet, also opposed the language. In a statement, Margaret Durkin, the group’s mid-Atlantic executive director, told Spotlight PA that the bill will have “unintended consequences that could jeopardize Pennsylvanians’ privacy and data.”

Beyond allowing parents or legal guardians to access direct messages between users, social media platforms might “overregulate and remove accounts that could undermine the free speech rights of users” when attempting to comply with the law, Durkin wrote.

Despite these concerns, a state House committee advanced the proposal in March with bipartisan support.

State House Majority Leader Matt Bradford (D., Montgomery) planned to bring the bill up for a vote by the full chamber a week later, according to a schedule shared by his spokesperson at the time. But in a closed-door meeting, progressive Democrats raised concerns about the chat-monitoring provision, legislative sources told Spotlight PA.

 State House Majority Leader Matt Bradford, D., Montgomery. (Credit: Commonwealth Media Services)
 

In response, Bradford urged lawmakers to stick together despite their concerns, sources said.

But that evening, health care provider Planned Parenthood PA announced its opposition in an email to state House Democratic lawmakers, arguing that the proposal threatened youth’s free speech and access to information on their sexual and reproductive health.

That seemed to sink the bill. Bradford took it off the voting calendar the next day, and state House Democrats canceled a related news conference to tout the proposal scheduled for that week.

A spokesperson for Bradford did not reply to a request for comment.

Munroe told Spotlight PA that he has since convened a working group with Planned Parenthood, the ACLU, and his progressive colleagues to find a compromise. He suggested lowering the age for chat monitoring to 13, or removing the provision altogether while leaving the data protections, parental controls, and age verification in place.

Both groups, he noted, are OK with the bill’s intent but disagree on the language. He plans to keep working on the issue.

“I don't represent the ACLU. I don't represent Planned Parenthood. I represent the parents and the citizens of 140th District in this commonwealth,” Munroe said. “And I can tell you, from all the conversations I've had, they want something done.”

A similar bill has also struggled in the state Senate.

A proposal nearly identical to Munroe’s, minus chat monitoring, advanced out of a state Senate committee with unanimous support last year. Republican leadership, however, has not brought the legislation up for a final vote.

“We were having difficulty crafting language that was going to get the support of the majority of our colleagues,” state Sen. Kristin Phillips-Hill (R., York), a member of the GOP leadership team and the prime Republican sponsor of the bill, told Spotlight PA.

She added that members of both major parties have opposed it, with some arguing it goes too far and others arguing it doesn’t go far enough. Those positions don’t break down along party lines, she added.

“If you're more of a libertarian … on the Republican side, you may express some of the similar concerns as we heard by some of our most progressive colleagues in the House,” Phillips-Hill told Spotlight PA.

The chat-monitoring provision is also opposed by Democratic Gov. Josh Shapiro, said his spokesperson Manuel Bonder.

Noting that nothing is close to reaching the governor’s desk, Bonder still said that there are “some pretty serious concerns with that bill.”

Overall, Bonder added, Shapiro “believes we have to take action to lean in on innovation and approach these technologies in a way that is responsible and ethical.”

The TikTok split

There appears to be more agreement in the General Assembly on another tech issue: banning TikTok from state devices. Shapiro has so far been opposed.

The popular app is owned by ByteDance, a Chinese company. Pennsylvania billionaire Jeffrey Yass, a major Republican donor, has a personal stake in the company, as does Susquehanna International Group, which he co-founded.

Some national security experts worry the Chinese government could demand the company turn over user data.

Under a bill sponsored by Phillips-Hill, any app owned by a “foreign adversary” would be banned from devices owned by public agencies, including school districts. The bill as originally drafted applied specifically to TikTok and passed the state Senate unanimously.

In a bipartisan vote, the state House agreed to amend the bill to expand its scope in late March. The proposal has not come up for a full, final vote in the chamber.

The bill would affect the Shapiro administration, which uses TikTok to tout the governor’s agenda to almost 43,000 followers. A February video in which Shapiro promised to protect abortion rights set to Beyonce’s “Texas Hold ‘Em” had garnered 1.7 million views as of April 2.

“We try and balance the need to reach people where they are, but also take the necessary precautions that the IT department has advised us on,” Shapiro told PennLive in a March interview.

Those precautions, Bonder said, include having TikTok on a single device that does not connect to the state’s WiFi network or have any other apps or data on it. That phone is used only to create the governor’s official TikTok videos, Bonder added.

“The governor has talked many times about how he believes there should be no wrong door for accessing state government,,” Bonder told Spotlight PA.

“For some people that’ll mean coming to the Capitol and having a meeting. For some that's sending an email. And for some, that’s engaging on social media.”

In a statement, a TikTok spokesperson echoed that sentiment, arguing that "bans on state government devices and networks prevent state agencies from reaching a wider audience.”

“Bills like these are being pushed through without regard for the facts,” the spokesperson added.

The legislation is mostly redundant. The Office of Administration — effectively the commonwealth’s human resources and IT department for tens of thousands of state employees — currently blocks TikTok’s URL on its WiFi network, and the app cannot be downloaded from the state’s application portal, according to a Shapiro administration memo to lawmakers viewed by Spotlight PA.

However, the governor’s administration said it opposed the bill, citing a need for flexibility that it achieves through executive orders or management directives instead of waiting for legislation.

“Today the issue is TikTok. In three months, six months, or a year, it could be another app that needs to be addressed,” the memo said.

Shapiro isn’t the only skeptic. State Rep. Tarik Khan (D., Philadelphia) was one of two Democrats to vote no on the updated TikTok ban. He argued that the language set a precedent of guilt by association that “we should not be establishing in the commonwealth.”

But Khan, who has introduced bipartisan legislation that would ban the use of AI to misrepresent “the words, actions or beliefs of the current or former candidate,” also argued that inaction is not an option.

“We have to be nimble, and we have to be ready to set guardrails,” Khan told Spotlight PA. “And the worst thing we can do is just do nothing.”