Strengthening Child Exploitation Enforcement Act

— 875 — Federal Trade Commission Protecting Children Online. The FTC has long protected children in a variety of different contexts. Internet platforms profit from obtaining information from children without parents’ knowledge or consent—and social media’s effect on the well-being of American children is well-documented. Around 2012, American teens experienced a dramatic decline in wellness. Depression, self-harm, suicide attempts, and suicide all increased sharply among U.S. adolescents between 2011 and 2019,16 with similar trends worldwide.17 The increase occurred at the same time that social media use moved from rare to ubiquitous among teens,18 making social media a prime suspect for the sudden rise in mental health issues among teens. In addition, excessive social media use is strongly linked to mental health issues among individuals. Several studies strongly support the notion that social media use is a cause, not just a correlation, of subjective well-being and poor mental health.19 Social media and other large platforms form millions of contracts every year with American children. And even though a minor can void most contracts into which he or she enters, most jurisdictions have laws that hold minors accountable for the benefits received under the contract. Thus, children can make enforceable contracts for which parents could end up bearing responsibility. Targeting chil- dren to create potentially harmful contracts or making parents responsible for such contractual relationships is an unfair trade practice. The FTC, therefore, has the authority, interest, and duty to protect children online from such contractual relationships. l The FTC should examine platforms’ advertising and contract- making with children as a deceptive or unfair trade practice, perhaps requiring written parental consent. Currently, the Child Online Privacy Protection Act (COPPA)20 regulates the information internet firms can obtain from children. COPPA fails because it (1) only protects children under the age of 13, leaving older teenagers completely unprotected and (2) only prohibits platforms from collecting information from a child using “actual knowledge” rather than abiding by the “constructive knowledge” standard, which prohibits collecting information from a user reasonably assumed to be underage. The FTC has rulemaking authority under this statute but has done little with this authority, nor can it—given the statutory constraints. However, l The FTC can and should institute unfair trade practices proceedings against entities that enter into contracts with children without parental consent. Personal parental responsibility is, of course, key, but the law must respect, not undermine, lawful parental authority.

— 875 — Federal Trade Commission Protecting Children Online. The FTC has long protected children in a variety of different contexts. Internet platforms profit from obtaining information from children without parents’ knowledge or consent—and social media’s effect on the well-being of American children is well-documented. Around 2012, American teens experienced a dramatic decline in wellness. Depression, self-harm, suicide attempts, and suicide all increased sharply among U.S. adolescents between 2011 and 2019,16 with similar trends worldwide.17 The increase occurred at the same time that social media use moved from rare to ubiquitous among teens,18 making social media a prime suspect for the sudden rise in mental health issues among teens. In addition, excessive social media use is strongly linked to mental health issues among individuals. Several studies strongly support the notion that social media use is a cause, not just a correlation, of subjective well-being and poor mental health.19 Social media and other large platforms form millions of contracts every year with American children. And even though a minor can void most contracts into which he or she enters, most jurisdictions have laws that hold minors accountable for the benefits received under the contract. Thus, children can make enforceable contracts for which parents could end up bearing responsibility. Targeting chil- dren to create potentially harmful contracts or making parents responsible for such contractual relationships is an unfair trade practice. The FTC, therefore, has the authority, interest, and duty to protect children online from such contractual relationships. l The FTC should examine platforms’ advertising and contract- making with children as a deceptive or unfair trade practice, perhaps requiring written parental consent. Currently, the Child Online Privacy Protection Act (COPPA)20 regulates the information internet firms can obtain from children. COPPA fails because it (1) only protects children under the age of 13, leaving older teenagers completely unprotected and (2) only prohibits platforms from collecting information from a child using “actual knowledge” rather than abiding by the “constructive knowledge” standard, which prohibits collecting information from a user reasonably assumed to be underage. The FTC has rulemaking authority under this statute but has done little with this authority, nor can it—given the statutory constraints. However, l The FTC can and should institute unfair trade practices proceedings against entities that enter into contracts with children without parental consent. Personal parental responsibility is, of course, key, but the law must respect, not undermine, lawful parental authority. — 876 — Mandate for Leadership: The Conservative Promise Other conservatives are more skeptical concerning the effect of online expe- rience on the young, comparing the concern about social media to concern about video games, television, and bicycle safety. They point out, as does Cato fellow Jeffrey A. Singer, that the psychiatric profession has yet to designate “internet addiction” or “social media addiction” as a mental disorder in the authoritative Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR).21 These con- servatives also maintain that calling for regulation undermines conservatives’ calls for parental empowerment on education or vaccines as well as personal parenting responsibility. In addition, some of the methods used to regulate children’s internet access pose the risk of unintended harms. For instance, age verification regulations would inevitably increase the amount of data collection involved, increasing privacy con- cerns. Users would have to submit to platforms proof of their age, which raises the risks of data breach or illegitimate data usage by the platforms or bad actors. Limited-government conservatives would prefer the FTC play an educational role instead. That might include best practices or educational programs to empower parents online. Antitrust Enforcement. As is evidenced by a relentless focus on bringing Big Tech lawsuits, state attorneys general (AGs) are far more responsive to their con- stituents than is the FTC. Such a “boots on the ground” approach would benefit the FTC enormously. Practically, this would mean establishing a distinct role in the FTC Chairman’s office focused on state AG cooperation and inviting state AGs to Washington, D.C., to discuss enforcement policy in key sectors under the FTC’s jurisdiction: Big Tech, hospital mergers, supermarket mergers, and so forth. FTC regional offices are substantially more in touch with local issues. Over the past few decades, the reach and influence of regional offices has shrunk dramati- cally. The FTC should consider returning authority to these offices. Some conservatives however are less supportive of this idea. Conservative enthusiasm for the idea of adding regional FTC offices to the states is a break from the majority conservative position. Endorsing the federal government as a pre- mier job creator runs counter to decades of conservative opinion that holds that New Deal agencies and subsequent government bodies should never have been created in the first place, and that their red tape and interference is a dominant cause of economic inefficiency. Republicans used to seethe when Democrats tried to move federal offices into the states. In the early 1990s, House Minority Whip Newt Gingrich fumed about Senator Robert Byrd’s campaign to transfer certain national intelligence facilities to West Virginia, calling it a “pure abuse of power.” Some contributors to this chapter would remind conservatives that the unseen mechanics of redistribution—by which taxpayer money paid to state employees is taken from taxpayers nationwide—is a drag on the economy of the entire country. Many conservatives fear that it would be impossible to uproot or even prune back

— 333 — Department of Education discrimination on the basis of sex in educational programs and activities. Instead, the Biden Administration has sought to trample women’s and girls’ athletic oppor- tunities and due process on campus, threaten free speech and religious liberty, and erode parental rights in elementary and secondary education regarding sensitive issues of sex. The new Administration should take the following steps: l Work with Congress to use the earliest available legislative vehicle to prohibit the department from using any appropriations or from otherwise enforcing any final regulations under Title IX promulgated by the department during the prior Administration. l Commence a new agency rulemaking process to rescind the current Administration’s Title IX regulations; restore the Title IX regulations promulgated by then-Secretary Betsy DeVos on May 19, 2020; and define “sex” under Title IX to mean only biological sex recognized at birth. l Work with Congress to amend Title IX to include due process requirements; define “sex” under Title IX to mean only biological sex recognized at birth; and strengthen protections for faith-based educational institutions, programs, and activities. The Trump Administration’s 2020 Title IX regulation protected the founda- tional right to due process for those who are accused of sexual misconduct. The Biden Administration’s proposed change to the interpretation of Title IX disposes of these rights. l The next Administration should move quickly to restore the rights of women and girls and restore due process protections for accused individuals. At the same time, there is no scientific or legal basis for redefining “sex” to “sexual orientation and gender identity” in Title IX. Such a change misrepresents the U.S. Supreme Court’s opinion in Bostock, threatens the American system of federalism, removes important due process protections for students in higher education, and puts girls and women in danger of physical harm. Facilitating social gender transition without parental consent increases the likelihood that children will seek hormone treatments, such as puberty blockers, which are experimental medical interventions. Research has not demonstrated positive effects and long- term outcomes of these treatments, and the unintended side effects are still not fully understood. — 334 — Mandate for Leadership: The Conservative Promise l The next Administration should abandon this change redefining “sex” to mean “sexual orientation and gender identity” in Title IX immediately across all departments. l On its first day in office, the next Administration should signal its intent to enter the rulemaking process to restore the Trump Administration’s Title IX regulation, with the additional insistence that “sex” is properly understood as a fixed biological fact. Official notice-and-comment should be posted immediately. l At the same time, the political appointees in the Office for Civil Rights should begin a full review of all Title IX investigations that were conducted on the understanding that “sex” referred to gender identity and/or sexual orientation. l All ongoing investigations should be dropped, and all school districts affected should be given notice that they are free to drop any policy changes pursued under pressure from the Biden Administration. l The OCR Assistant Secretary should prepare a report of OCR’s actions for the new Secretary of Education, who should—by speech or letter— publicize the nature of the overreach engaged in by his predecessor. l The Secretary should make it clear that FERPA allows parents full access to their children’s educational records, so any practice of paperwork obfuscation on this front violates federal law. Title VI—School Discipline and Disparate Impact Assuring a safe and orderly school environment should be a primary consid- eration for school leaders and district administrators. Unfortunately, federal overreach has pushed many school leaders to prioritize the pursuit of racial parity in school discipline indicators—such as detentions, suspensions, and expulsions— over student safety. In 2014, the Obama Administration issued a Dear Colleague Letter that muddied the standard for civil rights enforcement under Title VI for student discipline cases. Before the DCL, a school would be in violation of federal law for treating black and white students differently for the same offense (dispa- rate treatment); under the Obama Administration schools were at risk of losing federal funding if they treated black and white students equally but had aggregate differences in the rates of school discipline by race (disparate impact). OCR leveraged federal civil rights investigations as policy enforcement tools; these investigations could only end when school districts agreed to adopt lenient