Bills that would seek to provide greater online protections for kids moved forward on both sides of Capitol Hill on Thursday, though a House measure was pulled back from a committee vote in a bid for bipartisan support.
The Senate passed a bipartisan bill by unanimous consent that would amend current law to enhance protections for minors regarding the collection and use of their data by online platforms and extend such protections to children and teens under the age of 17.
The House Energy and Commerce Committee was set to mark up a Republican children’s data privacy bill, but the chair deferred action at the markup after he said that talks would continue between the parties.
“All of us want to protect kids. Since we’ve been here today, our staffs have continued to work toward a bipartisan agreement and both sides feel there’s been substantial progress towards a path forward,” said Chair Brett Guthrie, R-Ky.
That delay came after the committee approved, 28-24, a separate Republican bill that incorporates 12 measures the Commerce, Manufacturing and Trade Subcommittee approved in December into a measure dubbed the Kids Internet and Digital Safety Act. The bill would set new requirements for parental controls and require certain online platforms to put policies in place to address certain harms to kids online.
Sen. Edward J. Markey, D-Mass., sponsored the Senate privacy bill, which is known as the Children and Teens’ Online Privacy Protection Act or COPPA 2.0, for its updates to the 1998 data protection law for children.
Markey urged senators to support the bill to respond to the ways in which the internet has changed in the intervening years.
“Children and teens deserve privacy. They deserve safety. They deserve protection online. Unfortunately, Big Tech’s business model has evolved far faster than our laws. Today, the largest online platforms collect enormous amounts of personal data from their users, including from children and from teenagers,” Markey said.
Sen. Bill Cassidy, R-La., who chairs the Health, Education, Labor and Pensions Committee, offered his support for the unanimous consent request.
“Every parent should know that their child can go online without being tracked, targeted or taken advantage of. Now, every child it seems is using the internet – for schools, for connections, just to look things up. But they shouldn’t have to pay for that access with their personal information, particularly when the child doesn’t understand the value of their personal information,” Cassidy said.
The Senate bill would revise the original requirement that companies have “actual knowledge” that a user is a child before they’re required to get parental consent for disclosing the user’s data. The new language would change that standard to “actual knowledge or knowledge fairly implied on the basis of objective circumstances.”
The House bill would instead create a tiered system in which smaller companies would be governed by the “actual knowledge” standard and larger platforms would need parental consent if they “willfully disregarded information that would lead a reasonable and prudent person to determine that a user is a child or teen.”
KOSA debate
Members of both parties said that negotiations over the 12-bill package fell short of a bipartisan deal, including over parental controls for older teens.
Guthrie said that committee staff from both parties negotiated for “more than 40 hours” since August of last year.
“I’m disappointed that in spite of all that work we’re ultimately unable to reach a bipartisan agreement,” Guthrie said.
The most prominent of the bills combined into the new legislation is known as the Kids Online Safety Act, or KOSA. It would require platforms to put in place policies to prevent harms to kids including threats of violence, sexual abuse, sales of drugs and alcohol and financial harms caused by deceptive practices.
The House KOSA bill, sponsored by Rep. Gus Bilirakis, R-Fla., weakened many of the protections put forward in the Senate version of the bill. Sen. Marsha Blackburn, R-Tenn., sponsored that legislation, which would create a “duty of care” for platforms to prevent a broader list of harms that includes eating disorders, depression and anxiety, and patterns of compulsive use.
Bilirakis said Thursday that KOSA, as included in the KIDS Act, would put in place “significant safeguards” for kids using social media, including allowing minor users to opt out of recommendation algorithms.
“This includes limitations on the ability of strangers to engage with minors online. It limits design features that cause compulsive use and addiction to social media platforms,” Bilirakis said.
Republicans have argued that their safety bills are written differently than Senate versions to ensure that they can survive court challenges on First Amendment grounds.
The 12-bill package includes language that would require age verification to access sexual content online, which was previously included in another bill.
Rep. Diana Harshbarger, R-Tenn., said that the bill was based on language in a Texas law that the Supreme Court upheld last year.
“There are some groups out there who suggest it’s unconstitutional. Personally, I don’t believe this is your real concern. We’ve been hearing from a lot of folks who profit off doing harm to kids or have questionable ideological priorities,” she said.
Democrats said that they couldn’t support the package because it wouldn’t go far enough to regulate Big Tech. Several members pointed to the lack of a “duty of care” provision.
The committee’s ranking member, Rep. Frank Pallone Jr., D-N.J., argued that the parental tools included in the bill for messaging on social media and online video game services could give parents too much control
“These bills also threaten kids in unsupportive or even abusive households, where there can be real world harms from allowing parents complete access and control over their teens’ online existence,” Pallone said.
Rep. Yvette D. Clarke, D-N.Y., argued that the bill’s broad preemption of state laws would undermine state authority.
“Without a comprehensive federal standard, existing state laws are the only legislation keeping kids safe online right now,” Clarke said.
Rep. Kathy Castor, D-Fla., objected to the bill’s knowledge standard, which puts obligation on platforms that have actual knowledge that a user is a minor or acted in willful disregard.
Castor argued that the bills “would let social media companies off the hook by allowing them to claim they don’t know that children are on their platforms, even though these companies design their products to attract young users and profit from their presence.”
Democrats offered amendments to the package, including those that would change the knowledge standard and not preempt state laws that offer greater protections. All amendments were rejected along party lines.
Rep. Erin Houchin, R-Ind., offered but withdrew an amendment that would ban social media accounts for minors, after some positive discussion from both sides of the aisle. Her bill on the same issue was also discussed in a subcommittee legislative hearing but not included in the markup.
Age verification
The committee also forwarded two other bills. One would require large social media platforms to create an interface to allow third-party management of a child’s account. It was the only online safety bill to gain crossover votes from Democrats. The committee forwarded it 36-16.
A bill that would require age verification in app stores as well as parental consent for minors to download apps advanced on a vote of 26-23.
In a statement, industry group NetChoice indicated their mixed reaction to the slate of bills.
“Despite some initial progress, some of the committee’s proposals remain constitutionally problematic: restricting minors’ access to lawful content and undermining adults’ right to freely access information,” the statement said.
The group raised particular objection to the app store age verification bill, saying it “jeopardizes data privacy, violates free speech rights, and ignores the courts and privacy experts internationally that warn against the serious risks of government-mandated age verification.”
Design It For Us, a youth-led group that advocates on social media design, led a letter signed by dozens of civil-society groups urging the committee not to forward the KIDS Act and its version of KOSA. The letter raised concerns about the lack of a duty of care, broad preemption of state laws and the bill’s knowledge standard.
“We write as a coalition of young people, parents, and organizations united by a single conviction: the version of KOSA before you today not only fails to protect our families, but would actively hurt them,” the letter said.
Erika Chan and Hunter Savery contributed to this report.
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