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Blumenthal tweaks Kids Online Safety Act to ease concerns

U.S. Senator Richard Blumenthal takes questions from reporters at the Connecticut State Capitol Monday, May 9, ahead of a U.S. Senate vote expected later this week on a bill to preserve abortion right nationwide. In speaking about his co-sponsorship of a similar bill in 2013, Blumenthal said, “The possibility of overturning Roe v. Wade seem(ed) like some very distant nightmare. Now, the nightmare is real. Now, the storm has hit us.”
Mark Mirko
/
Connecticut Public
Senator Richard Blumenthal's Kids Online Safety Act gains the backing of enough Senators to overcome a filibuster.

As the Kids Online Safety Act built up support in Congress over the past two years, some outside stakeholders voiced concerns. Groups focused on privacy and LGBTQ+ rights warned of the unintended consequences that could be imposed on minors.

But some of these groups, including the Human Rights Campaign and GLAAD, have now dropped their opposition after additional changes were made to the bipartisan legislation championed by U.S. Sen. Richard Blumenthal, D-Conn.

The bill from Blumenthal and U.S. Sen. Marsha Blackburn, R-Tenn., got another boost of momentum on Thursday as more senators signed on and some critics softened their stances on it, though others still view it as a flawed bill despite the changes.

The number of co-sponsors grew to 62 senators, split almost evenly between both parties, with Senate Majority Leader Chuck Schumer, D-N.Y., as the most notable new supporter. U.S. Sen. Chris Murphy, D-Conn., had already been a co-sponsor.

Schumer has been generally supportive of legislative efforts on online safety for children but has now formally endorsed KOSA. Supporters hope this will be a catalyst for moving the bill forward in Congress, especially now that it would surpass the 60-vote threshold to overcome a filibuster in the Senate. But it remains unclear when exactly it would get a vote.

“This overwhelming bipartisan support for the Kids Online Safety Act — 61 total co-sponsors, Democrats and Republicans — reflects the powerful voices of young people and parents who want Congress to act,” Blumenthal and Blackburn said in a joint statement.

“The recent watershed hearing with Big Tech CEOs showcased the urgent need for reform. With new changes to strengthen the bill and growing support, we should seize this moment to take action. We must listen to the kids, parents, experts and advocates and finally hold Big Tech accountable by passing the Kids Online Safety Act into law,” they added.

The bill aims to put in place stricter settings by allowing children and parents to disable addictive features, enable privacy settings and opt out of algorithmic recommendations. It requires tech companies to conduct an annual independent audit to analyze the risks to minors and see if they are working to reduce it.

KOSA also establishes a “duty of care” for sites that are likely used by young individuals “to prevent and mitigate the following harms to minors” in matters related to certain mental health disorders, physical violence, online bullying, eating disorders and sexual exploitation.

For the past two sessions of Congress, the Kids Online Safety Act has been approved by the U.S. Senate Committee on Commerce, Science and Transportation but has stalled heading to the Senate floor. House lawmakers, meanwhile, have largely wanted to focus on broader privacy legislation protecting both minors and adults online.

There has been limited action on the federal level over the past few decades dealing with young users’ experiences online. The Children’s Online Privacy Protection Act of 1998 was one of the last major pieces of legislation that protects children under age 13.

Another bipartisan bill seeking to modify the existing law, known as COPPA 2.0, would ban targeted advertising to minors and extend protections to users between ages 13 and 16. That legislation was also updated and amassed more co-sponsors on Thursday.

Blumenthal and Blackburn have made a few updates to the legislation prior to the latest ones announced on Thursday in an attempt to assuage concerns.

According to Blumenthal and Blackburn’s offices, the new clarifications to the duty of care provision focus more on product design features of the site or app over content. The bill specifies design features as personalized recommendation systems, nudges, appearance altering filters, notifications and in-game purchases.

The bill was also updated to reflect the Federal Trade Commission as the only authority to enforce the duty of care, instead of state attorneys general. Those officials would only have the ability to take civil actions related to safeguards for minors, disclosure about a company’s policies and practices, and transparency related to how the sites seek to mitigate harm to minors.

And the legislation has a revised standard that KOSA preempts state law unless states have stronger protections than the federal statute. U.S. Sen. Ted Cruz, R-Texas, had sought clarity on this issue at a past committee meeting. He is now one of the new co-sponsors of the bill.

“The changes in the bill were the product of intensive and productive conversations over many months to address understandable concerns,” Blumenthal said in an interview, saying that the latest updates are providing “a very promising path, but we’re continuing to listen to all who have an interest.”

In addition to growing lawmaker support, more outside groups got behind the Kids Online Safety Act, including a wide range of groups from the NAACP to Nintendo.

But since the bill’s introduction, civil liberties, digital privacy and LGBTQ+ rights groups have been raising concerns about the potential censorship of younger users and the debate over what content is deemed “appropriate.”

A letter organized last year by Fight for the Future on behalf of trans and gender-expansive parents argued that the bill would result in more data collection of minors and “puts trans kids and their families at risk as more and more states move to strip us of our rights and criminalize our kids’ health care, education, and very existence.”

Some of that opposition, however, dissipated after the most recent updates. While the LGBTQ+ rights groups did not explicitly endorse the bill, they noted that they would no longer oppose the legislation if Congress passes it.

“When KOSA was first introduced, we had serious concerns that this bill could open the door to bad actors weaponizing the law to suppress affirming content for LGBTQ+ young people. Some early supporters of KOSA even touted that this is how they intended to use the law,” seven LGBTQ+ groups said in a letter to Blumenthal, which includes Human Rights Campaign, GLAAD, GLSEN, PFLAG National, National Center for Lesbian Rights, National Center for Transgender Equality and The Trevor Project.

“The considerable changes that you have proposed to KOSA in the draft released on Feb. 15, 2024, significantly mitigate the risk of it being misused to suppress LGBTQ+ resources or stifle young people’s access to online communities. As such, if this draft of the bill moves forward, our organizations will not oppose its passage,” the letter continued.

Other groups remain unchanged in their opposition to KOSA, at least for now.

Fight for the Future, which noted it was not included in the discussions over bill text changes, pointed to what the nonprofit sees as some positive updates to the bill: the enforcement of attorneys general “narrowed” to prevent politicization of content, as well as limiting the duty of care section to product design.

But the group argues that the lack of other requested changes, like further limiting the duty of care to be “content-neutral design choices,” it remains opposed to the Kids Online Safety Act without even more changes. They argue that it could open the door to the FTC pressuring platforms to automatically filter topics like LGBTQ+ issues by claiming that content could cause mental health issues that fall under the duty of care section.

“We refuse to accept that trans youth and human rights must be collateral damage in the fight to keep kids safe online,” Fight for the Future said in a Thursday statement.

Jason Kelley, activism director of Electronic Frontier Foundation, said the bill is still “a dangerous and unconstitutional censorship bill.”

“It would still let federal and state officials decide what information can be shared online and how everyone can access lawful speech,” Kelley said in a statement. “KOSA is still the wrong approach to protecting young people online and still would do more harm than good.”

When asked if he would make further changes if concerns persist, Blumenthal said he did not expect more “major” changes but noted that updates could be made by lawmakers if it comes up for a Senate vote.

“As we speak, we have made significant changes, and I don’t foresee what additional changes might be necessary,” Blumenthal said. “There’s always the amendment process on the floor. I don’t anticipate major changes.”

Online safety has been the subject of a number of recent congressional hearings zeroing in on Big Tech.

Blumenthal led a hearing last November as chairman of the Senate Judiciary Subcommittee on Privacy, Technology and the Law, which featured a whistleblower who used to work for Meta-owned platforms Facebook and Instagram. He testified about his warnings to executives that went ignored and his own teenage daughter’s experiences on Instagram with online harassment.

And a few weeks ago, executives for Meta, TikTok, Snap, Discord and X — formerly known as Twitter — testified before Congress on the effects of their websites on children. The January hearing at times grew contentious among CEOs and lawmakers.

After being prompted by lawmakers, Meta CEO Mark Zuckerberg and Snap CEO Evan Spiegel apologized to parents who attended the hearing about the harm their platforms have caused their children.

Blumenthal, who sits on the Senate Judiciary Committee, asked each tech executive whether they support the Kids Online Safety Act. Snap and X said they did. Most of the tech executives sought to mention the practices and rules they have since put in place to protect minors.

But the senator said he expects Big Tech to keep fighting KOSA and other tech-related bills through massive lobbying efforts.

“What’s most important is what they do, not what they say,” he said. “We expect they will continue to fight us with their armies of lawyers and lobbyists because this legislation is so directly a threat to their business model of exploiting children.”

The Connecticut Mirror/Connecticut Public Radio federal policy reporter position is made possible, in part, by funding from the Robert and Margaret Patricelli Family Foundation.

This story was originally published by the Connecticut Mirror.

Lisa Hagen is CT Public and CT Mirror’s shared Federal Policy Reporter. Based in Washington, D.C., she focuses on the impact of federal policy in Connecticut and covers the state’s congressional delegation. Lisa previously covered national politics and campaigns for U.S. News & World Report, The Hill and National Journal’s Hotline.

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