Online safety legislation focused on children and teens that has come under fire from key senators passed the House Monday, setting the stage for continued wrangling as Congress seeks to address concerns raised by parent and free speech groups.
The bipartisan legislation, which Energy and Commerce Committee leadership amended under a compromise last week, passed 267-117 under suspension of the rules.
The bill, known as the Kids Internet and Digital Safety or KIDS Act, would require online platforms to put in place “reasonable policies” to address certain harms to kids online, including threats of physical violence, sexual exploitation and the sale of drugs and alcohol.
The reasonableness standard has raised concerns from opponents who say it’s too weak. A competing bipartisan Senate bill, yet to be considered, would impose a tougher “duty of care” standard on social media platforms, though that provision itself has spurred First Amendment concerns.
The House bill would also require new parental controls, including for online gaming, direct and ephemeral messaging, and artificial intelligence chatbots.
Energy and Commerce Chair Brett Guthrie, R-Ky., the bill sponsor, said during floor consideration Monday that it was a “step forward in establishing meaningful safeguards.”
He added, “It is an important milestone — not a finish line — in the effort to better protect children online.”
The committee advanced the Republican-led bill in March on a party line vote, combining 12 subject area bills into the final measure.
A compromise version unveiled early last week added data privacy protections for minors and changed the bill’s preemption of state laws to allow for laws stricter than the federal standard. It also added language that would create a federal registry of data brokers.
An updated version of the bill released on Friday also removed a requirement that platforms’ harm reduction policies take into account technical feasibility. It also would require platforms to create controls that can limit design features that encourage compulsive use, rather than features that result in such use.
It also removed language that would require verifiable parental consent for safeguards and parental tools, and removed a provision that stated the bill could not be construed to require features to weaken security tools like encryption.
States preemption
Energy and Commerce ranking member Rep. Frank Pallone Jr., D-N.J., who reached the compromise with Guthrie, acknowledged the concerns surrounding their deal, particularly about states’ regulations.
“I know there are parents who would like Congress to go even further than the KIDS Act, and I want to be clear — the KIDS Act is a floor, not the ceiling. The preemption language in the KIDS Act is written with the explicit intent of ensuring that states have the authority to pass and enforce stronger state laws, including those with a duty of care,” he said.
Their deal drew objections from senators who support the Senate “Kids Online Safety Act,” sponsored by by Tennessee Republican Sen. Marsha Blackburn. That bill would give online platforms a “duty of care” to prevent harms to kids, including eating disorders, depression and anxiety. A version of the legislation is part of the House bill, but critics say without the duty of care language, the bill is weakened too much.
Blackburn, along with Sens. Maria Cantwell, D-Wash., and Richard Blumenthal, D-Conn., has been vocal in opposition to the House legislation. Cantwell is the ranking Democrat on the Senate Commerce Committee, which could take up the Blackburn bill in the coming weeks
Groups opposed to the House bill kept up their criticism Monday.
Mary Graw Leary, a law professor at Catholic University, during a virtual briefing organized by The National Center on Sexual Exploitation, said the House bill would serve as a shield as social media companies increasingly find themselves in court defending against accusations of harms to kids.
“They’re seeking from you a radical legal position that they can become an entire industry that has no duty to design their products with safety to avoid the harms that their own internal documents have made them aware that they are contributing to,” she said.
The House bill has also drawn criticism from free speech groups.
Carolyn Iodice, legislative and policy director for the Foundation for Individual Rights and Expression, said in a statement the bill would “hand state and federal officials unprecedented power to reshape the internet as we know it.”
“Any method by which we communicate — mail, telephones, websites, or apps — will inevitably be used by some who want to cause harm,” Iodice said. “The government can and should address those specific users, but the First Amendment doesn’t let the government redesign the architecture of the places we use for speech.”
The Electronic Frontier Foundation raised concerns about the bill’s knowledge standard — the level at which platforms would be required to protect someone they “know” is a minor.
Senior Policy Analyst Joe Mullin wrote in an online post that while the bill doesn’t explicitly require age verification, it could in practice drive platforms in that direction.
“To try to avoid liability, services will have to determine which users are teenagers and which are not,” Mullin wrote. “Most won’t be able to simply trust their users. They’ll have to collect more information about age, before any lawsuit or government action arises.” He said they will likely rely on driver’s licenses, passports, and age-estimation systems that look at user activity or require facial scans.
The next step for online safety legislation is as yet unclear. Senate Commerce Chairman Ted Cruz, R-Texas, previously indicated plans for a markup of KOSA and other kids’ safety legislation, but has yet to set a date.
Cantwell said Friday she and others are “worried” about the possible inclusion of the KIDS Act at that markup. She and Blumenthal on Friday urged opposition to the House bill.
Blumenthal, a co-sponsor of the Blackburn version, said he does not want to see Cruz back the House version.
“I’m worried that he and others may be persuaded by House members that their version is the one that should be passed by the Senate as well as the House, which is why we’re urging House members not to take the bait here, and adhere to the real KOSA.” Blumenthal said.
