On December 8, Instagram CEO Adam Mosseri appeared before the Senate Subcommittee on Consumer Protection, Product Safety, and Data Security to answer questions about the social media platform’s effects on children and teens. His appearance followed an announcement by a bipartisan coalition of state attorneys general (AGs) regarding an investigation into whether Instagram promoted its platform to children and young adults despite knowing that its use was associated with physical and mental health harms. The AGs’ investigation and Mosseri’s appearance before Congress raise questions about the regulatory future of Big Tech companies and social media platforms.

In response to previous scrutiny of the photo-sharing app by state AGs, Mosseri commented that “attorneys generals’ responsibility is primarily to enforce the law, not to write it.”[1] His statement raises an interesting question. To what extent are existing laws applicable to social media platforms? The state AG’s current investigation focuses on violations of state consumer protection laws and the federal Children’s Online Privacy Protection Act related to data collection and advertising to minor children.[2] At this point, it is unclear whether those laws will provide a good fit for any potential claims against Instagram.

At the December 8 hearing, Mosseri proposed self-regulation as the best strategy for social media regulation going forward. Specifically, he proposed the establishment of an industry body that could work together to determine best practices to address concerns regarding children and teen use of social media platforms — such as best practices for verifying age, ensuring age-appropriate experiences, and creating more effective parental controls. The day before the hearing, Mosseri announced new features on Instagram intended to improve teen safety on the app. For example, Instagram will begin preventing users from tagging or mentioning teens that do not follow their accounts.[3] In the press release, Mosseri said that he would continue “to welcome productive collaboration with lawmakers and policymakers on [the] shared goal of creating an online world that both benefits and protects many generations to come.”[4]

Mosseri’s comments appear to be sincere as Instagram has been responsive to pressure from governmental officials. In May, 44 state AGs wrote a public letter to Instagram’s parent company, Meta (formerly Facebook), urging the company to abandon plans to launch a version of the Instagram app created specifically for children.[5] In response to that letter, Instagram announced it would suspend its plans to launch the child-centered app.[6] Nevertheless, it remains unclear whether legislators and state officials would willingly accept self-regulation as the primary solution. At the December 8 hearing before the subcommittee, the senators’ statements and questions hinted that perhaps new federal legislation specifically targeted to social media platforms might be coming. The next day, a bipartisan group of senators announced a new bill that would require social media companies to share platform data with independent researchers. The Platform Accountability and Transparency Act would establish new rules compelling social media platforms to share data with “qualified researchers.”[7] Reports suggest that the senators on the Commerce Committee are working on a bill that would address children’s online safety, as well as others targeted toward privacy, algorithm transparency, and other issues. Several lawmakers are calling on President Biden to support their efforts.[8]

Whether President Biden and other members of Congress will back these proposals in the new year and push for heightened regulation of social media companies remains an open question. However, state AGs historically have not been prone to wait for federal legislation when consumers — especially children — are perceived to be at risk of being harmed. With that background in mind, it is likely that in 2022, the state AGs will move forward with their multistate investigation.

[1] Jeff Horwitz and Georgia Wells, “Instagram’s Effects on Children Are Being Investigated by Coalition of States,” The Wall Street Journal (Nov. 18, 2021), https://www.wsj.com/articles/instagram-effects-on-children-is-being-investigated-by-coalition-of-states-11637262000?mod=article_inline.

[2] Press Release, “AG Healey Co-Leads Nationwide Investigation into Instagram’s Impact on Young People” (Nov. 18, 2021), https://www.mass.gov/news/ag-healey-co-leads-nationwide-investigation-into-instagrams-impact-on-young-people.

[3] Adam Mosseri, “Raising the Standard for Protecting Teens and Supporting Parents Online” (Dec. 7, 2021), https://about.instagram.com/blog/announcements/raising-the-standard-for-protecting-teens-and-supporting-parents-online.

[4] Id.

[5] Letter to Mark Zuckerberg, Facebook, Inc., “Facebook’s Plans to Develop Instagram for Children Under the Age of 13” (May 10, 2021), https://ag.ny.gov/sites/default/files/naag_letter_to_facebook_-_final.pdf.

[6] Jessica Bursztynsky, “Facebook says it’s pausing effort to build Instagram for kids,” CNBC (Sept. 27, 2021), https://www.cnbc.com/2021/09/27/facebook-pausing-effort-to-build-instagram-for-kids.html.

[7] Proposed Bill, https://www.coons.senate.gov/imo/media/doc/text_pata_117.pdf.

[8] John D. McKinnon, “Lawmakers Want Biden to Play Bigger Role Pushing Tech Legislation,” The Wall Street Journal (Dec. 26, 2021), https://www.wsj.com/articles/lawmakers-want-biden-to-play-bigger-role-pushing-tech-legislation-11640514605?mod=rss_Technology.