Author: Nita Farahany Source: https://nitafarahany.substack.com/p/the-senate-just-agreed-on-something Published: March 22, 2026
A Substack essay by Nita Farahany documenting Class 9.1 of her Advanced Topics in AI Law and Policy course (Class 9.1 of roughly 30). It opens Week 9 on children and online safety, anchored on the unanimous Senate passage of COPPA 2.0 on March 5, 2026, which Farahany describes as the most significant federal children's online-privacy update in 27 years. The class frames the competing theories of online harm to children, surveys three regulatory strategies and four age-verification methods, and sets up the Class 9.2 deep dive and Class 9.3 analysis of First Amendment strict scrutiny.
Summary of argument
Farahany uses COPPA 2.0's Senate passage as the entry point for Week 9. As of the class, House passage was uncertain, and the bill explicitly disclaims any age-verification mandate. The essay's organizing move is to separate the question of what harms children online from the question of how to regulate it, then to show that the choice between theories of harm determines which remedies survive constitutional review later in the week.
Competing theories of harm
The class sets two theories of harm against each other. Under the content theory, harm comes from specific harmful content, and the remedy is content moderation, parental controls, and content filters. Under the architectural theory, harm comes from engagement architecture — infinite scroll, autoplay, variable-reward notifications — regardless of content, and the remedy is design regulation. Farahany argues the distinction is not merely descriptive: it determines what counts as a "less restrictive alternative" under First Amendment strict scrutiny, the subject of Class 9.3.
The empirical contest behind these theories, extending Class 2.2, is framed as Haidt versus Orben and Przybylski. The Anxious Generation thesis holds that smartphones and social media drove the decline in adolescent mental health from 2012 onward. Orben and Przybylski's re-analysis found effect sizes that they described as "comparable to wearing glasses or eating potatoes." Both sides have replicated their results, and interpretations of subgroup effects vary.
The class also presents an interest that cuts against parental-authority framings. The Trevor Project, GLSEN, and others have argued that parental-consent requirements for teenagers can function as restrictions on access for youth in unsupportive households. The interest in a teenager having privacy from parents runs directly against the interest in parents having authority over children, and Farahany notes there is no rule that resolves both.
Regulatory strategies
The class surveys three regulatory strategies for children's online safety:
- Access restriction. Examples are Arkansas SB396 and Australia's under-16 social-media ban, effective December 10, 2025, with fines of A$49.5M for non-compliance. The Australian ban had roughly 70% public support, and circumvention was reportedly achieved within 24 hours.
- Design code. Examples are the UK ICO Children's Code (2021) and the California Age-Appropriate Design Code Act (CAADCA, 2022), which has been mostly blocked.
- Data minimization. The example is COPPA 2.0 (2026), which passed the Senate with House action pending and explicitly disclaims age verification. It bans targeted advertising to under-17s and adopts a "knowledge fairly implied" standard.
Age-verification methods
The class lays out four age-verification methods and their tradeoffs:
- Government ID — most accurate, but creates an identity-tied access database and carries breach risk.
- Credit card — excludes the unbanked and is easily circumvented.
- Biometric age estimation — uses no identity database, but has documented accuracy disparities by race and gender, citing Buolamwini and Gebru (2018).
- Device-level attestation — passes a binary "over 16" signal, but concentrates power in Apple and Google, and a list of minor-linked devices creates targeting risk.
Constitutional backdrop
The class situates age verification against Free Speech Coalition v. Paxton (2025), in which the Supreme Court upheld Texas's age-verification requirement for adult content, holding that adults have no First Amendment right to avoid verification when accessing content that is legally obscene as to minors. Whether and how that reasoning extends to social media is the unresolved question the class carries forward.
Relationships
- part-of: Nita Farahany Advanced Topics course (Class 9.1 of ~30)
- related: Coppa 2 0 (planned), Australia Social Media Ban (planned)
- previous: Inside My Advanced Topics Class 8.3: What the Law Is Trying to Do About It (Farahany, March 2026) next: Inside My Advanced Topics Class 9.2: The Law That Kept Getting Blocked (Farahany, March 2026)