Silicon Valley could get an easy ride on child privacy if Markey is elected out

Sen. Ed Markey started working on children's online privacy issues before the modern internet was created. He authored the Children's Online Privacy and Protection Act, the only federal commercial privacy law that protects children in the U.S., in 1998 — six years before Facebook was founded and almost two decades before the rise of TikTok.

"The current situation is utterly unacceptable," Markey said in 1996, urging Congress to act quickly to pass a comprehensive privacy bill. (It still has not.) He warned that the "wondrous wire may also allow digital desperadoes to roam the electronic frontier unchecked by any high-tech sheriff or adherence to any code of electronic ethics."

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His metaphors are dated, but he was pretty much right. And for over two decades, Markey, a Massachusetts Democrat currently facing the most serious primary challenge of his political career, has been an unmatched voice defending children's online privacy in Congress. He has doled out a forceful drumbeat of bills, letters and oversight hearings to ensure tech companies continually consider the needs of children and teens as they build their powerful products.

Now, those companies could be in for an easier ride. Lawmakers, advocates and experts focused on child safety are fretting about the real possibility that Markey might lose to Rep. Joe Kennedy on Sept. 1, leaving them without their champion in the Senate.

His loss "would be a setback for the cause of children's privacy, no question," Sen. Richard Blumenthal, a longtime ally of Markey on consumer rights, told Protocol. "No one can be another Ed Markey when it comes to children's privacy. In style and substance, he is simply irreplaceable."

Markey's efforts on children's privacy are only one part of his larger legacy on privacy and telecommunications policy. Already in 1993, as the head of the House Energy and Commerce technology subcommittee, he was holding oversight hearings about the "rights and responsibilities of individuals and organizations in cyberspace," and a few years later, he co-authored the Telecommunications Act of 1996. He slipped privacy provisions into multiple communications laws as the co-founder of the Congressional Privacy Caucus, and has been lauded as a giant in the tech policy world.

Kennedy campaign spokesperson Emily Kaufman pointed out that Kennedy is a member of the House Committee on Energy and Commerce, which has jurisdiction over tech issues. "As a member of the Energy and Commerce Committee, Joe has been a leader in the fight for consumer protection and privacy online," Kaufman said in a statement to Protocol. "And as a dad to two young kids, he will never compromise when it comes to the privacy, security and safety of children on the internet."

'They're on the phone to you first'

Experts and allies said Markey, who is 74, has longevity on the issue that would be impossible to match. He's been working on the issue of children in technology since he co-authored the 1990 Children's Television Act, which requires broadcast television stations to air educational programming. He's hauled puppets before Congress to justify the need for quality children's television. And he recently helped push the FTC into fining Google and YouTube $170 million for violating COPPA, though he said the penalty didn't go far enough.

"The thing he was consistent about with respect to kids … is that businesses — whether they're broadcasters, television networks, or online, internet-based web companies — should not treat children like little consumers; they should be treated like children," said Colin Crowell, who worked as Markey's top tech policy aide for 20 years before serving as Twitter's vice president of global public policy until 2019.

All of the children's privacy and safety organizations Protocol reached out to said they have not yet been contacted by the Kennedy campaign.

"[Markey] has consistently, proactively defended the law from being attacked by the big tech giants, and he has worked to expand its protections, going eyeball to eyeball with the Federal Trade Commission and the Trump administration to stop them from weakening [COPPA]," said Jeff Chester, the executive director of the Center for Digital Democracy and a children's online rights advocate who has worked with Markey for decades.

"You never even have to call up Ed Markey's office to get them to act when it comes to children and the internet," he said. "They're on the phone to you first."

Some lawmakers have rubbed Big Tech the wrong way in recent years, after realizing there were political points to be won by beating up on companies such as Facebook and YouTube. But Nu Wexler, a former spokesperson for Google, Facebook and Twitter, said the Silicon Valley companies largely maintain begrudging respect for Markey despite his penchant for hitting them over privacy issues in the press, and go "out of their way" to keep his office posted on product and privacy updates.

"So much of the tech policy world now is tied up in social media content controversies," said Wexler, who also formerly served as a spokesperson for Blumenthal. "[Markey has] criticized the industry at times when they've deserved it, but has not ventured off into wacky conspiracy theories. I think the companies respect Markey for that."

Crowell, Markey's former aide, pointed out that Markey has also been a forceful advocate for "creating opportunities for technology companies," as one of the primary advocates for net neutrality and against efforts to regulate encryption. "He's not just anti-tech and this is just one more thing where he's anti-tech," Crowell said. "He loves technology, but he wants to wring out all the potential benefits without being oblivious to the potential downsides."

That respect from the industry has resulted in campaign contributions — his campaign has received $40,585 from Alphabet, $10,316 from Facebook and $15,757 from IBM during this election cycle — signaling that the industry considers him at least somewhat of an ally, even as he calls for significant overhauls to their business practices.

The future of COPPA

At this moment, Markey has multiple bills moving through Congress on the issue of children's privacy, including an update to COPPA (dubbed COPPA 2.0) to expand protections for teens online; the tech-backed CAMRA Act to research the effects of technology on child development; and the KIDS Act to outlaw the use of addictive features in digital products geared toward children.

"We're certainly concerned about what will happen to the legislative proposals he's been driving," said Josh Golin, the executive director of the Campaign for a Commercial Free Childhood, a coalition that is closely allied with Markey.

Markey himself has conceded that COPPA was a flawed piece of legislation. For instance, it only protects children under 12 and has hardly prevented companies from continuing to track and surveil millions of young kids as they lie about their age and skirt the parental consent rules.

"Is it perfect? No," said Chester, who approached Markey's office around 1996 about the need for a children's privacy law and has continued to press for updates.

So Markey has spent years pushing COPPA 2.0, legislation that would expand COPPA to cover teenagers and create an "eraser button" for children's personal information, among other fixes. Most recently, he introduced the legislation alongside Republican Sen. Josh Hawley, garnering praise from advocates who said their effort had more momentum than usual as lawmakers negotiated over a federal privacy bill.

Markey is also one of the most attentive lawmakers watching the FTC as it reviews the existing rules around COPPA, warning that the agency could use this opportunity to weaken the law.

David Vladeck, who formerly led the FTC's consumer protection division, said Markey and his staff were instrumental the last time the FTC reviewed COPPA in 2013. Vladeck, who oversaw the FTC's COPPA overhaul, said Markey "made his views known" that the law needed to be interpreted as broadly as possible in order to rein in all forms of tracking children online.

"His role was laying out what he thought was the right approach, and advocating for it the way Facebook and Google and everybody else in the world was also advocating for changes," Vladeck said.

Who replaces a pioneer?

The country is at an inflection point when it comes to children's privacy, as students flood online for remote learning amid the coronavirus pandemic and continue to flock to TikTok, which has a user base of largely minors, in their spare time.

Some advocates argue that it's useful to have someone with longstanding knowledge and expertise in Congress to confront the moment. Earlier this year, Markey and Blumenthal called for an investigation into TikTok's children privacy practices.

Kathryn Montgomery, a digital rights advocate who has advised Markey on multiple pieces of legislation and wrote the book "Generation Digital: Politics, Commerce, and Childhood in the Age of the Internet," said it's notable how intently Markey has kept up with the changing world of children's digital lives. "Knowing at the outset that this notion of 'one-to-one' marketing was the model in the late '90s, which has now fully blossomed into this incredibly powerful commercial surveillance system … I think made him very much a pioneer," Montgomery said.

Now, it's difficult to anticipate where the energy that Markey has exuded will come from if he is elected out. A spokesperson for Hawley, who introduced the latest version of COPPA 2.0 with Markey, said Hawley will continue to push forward on COPPA 2.0 regardless of the outcome. And multiple lawmakers, including Reps. Bobby Rush and Kathryn Castor, have introduced bills that would update children's privacy laws. But the effort will take a different shape without Markey.

"Senator Markey is really the point person for Republicans and Democrats in the Senate on the protections of kids and teens, in addition to his general view on privacy," said Ariel Fox Johnson, senior counsel with Common Sense, a children's advocacy org. "I've talked to people in various offices across the spectrum who knew he was the person to look for for kids and teens."

"If he's not around, then I just don't know," she said. "They're going to have to look for someone else."

Blumenthal said he'll continue to be a "stoic advocate and aggressive worker" for the cause alongside other lawmakers who have pressed the issue over the years. But he said he suspects "it will take a number of people" to replace Markey.

"I cannot imagine the cause of children's privacy without his being at the tip of the spear," Blumenthal said.