The latest version of the Kids Online Safety Act in the U.S. House is facing new opposition, this time from some parent advocate groups and U.S. Sen. Richard Blumenthal, who is a co-author of the Senate bill.
Republicans on the House Energy and Commerce Committee removed a core part of the Senate bill: the “duty of care” section, which would require companies to “exercise reasonable care” when designing a platform to mitigate a defined list of potential harms to minors, including certain mental health disorders, substance use disorders and physical and sexual abuse.
Targeted design features include infinite scroll, autoplay, notifications and other features that keep minors engaged in an app or site.
The House draft requires platforms to create “reasonable policies, practices, and procedures” related only to threats of physical violence, sexual exploitation and abuse and the distribution of drugs. It would also prevent states from enacting or enforcing their own laws on similar issues.
House lawmakers said the changes were made to address lingering concerns over free speech and potential issues in court.
The revision drew mixed reactions at this week’s congressional hearing on the bill. Some lawmakers and experts in the field were encouraged to see the duty of care removed, while others were disappointed about what they now view as a “watered-down” bill.
Without the duty of care provision, Blumenthal argued, lawmakers are enabling major tech companies and shying away from holding them accountable. But he remains hopeful the House and Senate can figure out a compromise bill and sees the renewed attention to the issue as progress.
“Totally caving on the duty of care is an abdication of responsibility to protect kids,” Blumenthal said. “There has to be some duty of care so Big Tech will recognize its responsibility, and the House surrendering is simply a sign of Big Tech’s power.”
“I would anticipate we’ll have negotiation once they’re done with those hearings,” he continued. “But we’re unwilling to accept a bill that weakens it so much that it fails to protect children.”
This week’s hearing illustrated the challenges that have plagued various pieces of tech legislation from the start: there’s broad consensus in Congress to better protect children and teenagers online but sharp disagreements remain in how to do so.
The revised Kids Online Safety Act was one of 19 bills up for consideration before a House Energy and Commerce subcommittee on Tuesday. The committee also debated legislation that would require age verification on app stores, an updated version of the Children and Teens’ Online Privacy Protection Act of 1998, and other bills on data privacy and parental controls.
But the Kids Online Safety Act, or KOSA, was a dominant focus of the hearing.
KOSA aims to put in place stricter settings by allowing children and parents to disable addictive features like infinite scroll and autoplay of videos, enable privacy settings and opt out of algorithmic recommendations. The types of platforms that would need to comply include social media, online video games, messaging sites and video streaming services.
The duty of care section, to hold platforms legally responsible for mitigating certain harms to minors, has come under scrutiny before, though it has been revised and narrowed in newer iterations of the Senate bill.
In the Senate version, platforms covered under the bill must “exercise reasonable care” in creating and implementing design features “to prevent and mitigate the following harms to minors where a reasonable and prudent person would agree that such harms were reasonably foreseeable.”
Some of those harms include eating disorders, substance use disorders, suicidal behaviors, and depressive and anxiety disorders with “objectively verifiable and clinically diagnosable symptoms” that relate to compulsive usage of the platform by a minor. Sexual exploitation and physical violence and online harassment that is “severe and pervasive” are also included.
The House GOP version instead seeks to adopt a more limited policy. It would require platforms likely to be used by minors to enforce “reasonable policies, practices, and procedures” regarding harms to minors related only to threats of physical violence, sexual exploitation and abuse, and the distribution of narcotic drugs.
A lead Republican sponsor, U.S. Rep. Gus Bilirakis, R-Fla., said changes were made to KOSA to make sure it’s “durable,” citing recent court cases of state-level child online safety legislation. And House Energy and Commerce Committee Chairman Brett Guthrie, R-Ky., said the revisions were meant to address concerns in both parties.
“Don’t mistake durability for weakness, folks — this bill has teeth. By focusing on design features rather than protected speech, we will ensure it can withstand legal challenge while delivering real protections for kids online … and their families,” Bilirakis said.
Bilirakis also led last year’s House bill with U.S. Rep. Kathy Castor, D-Fla., which similarly contained a duty of care section like the Senate version. At the hearing, Castor called the new changes “a slap in the face” to parents and advocates pushing for KOSA.
Blumenthal rejected the characterizations from GOP House members, saying the bill is “content neutral.” He has said before it would not allow enforcers like the Federal Trade Commission or state attorneys general to sue over content or speech. And he called arguments that the bill wouldn’t hold up in a court because of First Amendment rights “totally bogus.”
“It’s not a bill about restricting content. It’s about the design of the intent so as to enable Big Tech itself to have responsibility,” he said. “So there’s nothing in our bill that restricts First Amendment free expression.”
ParentsSOS, a group representing families who have attributed the deaths of their children to harmful content viewed online, were disheartened by the changes to a bill they’ve been pushing Congress to pass for several years. The group took issue with the removal of the duty of care as well as the provision in the House bill that the federal regulation can preempt states’ own laws on children’s online safety.
They are encouraging House members to take up the Senate version crafted by Blumenthal and his Republican co-author, U.S. Sen. Marsha Blackburn of Tennessee.
“It needlessly delayed the House from advancing the wildly popular Senate version of the Kids Online Safety Act, which gives parents the tools they need to keep their children safe,” Joann Bogard, a member of ParentsSOS, said in a statement following the hearing. “If the Committee continues to advance a weak version of KOSA and preempt good state laws, we will have no choice but to vocally oppose the package.”
But some of the experts testifying at this week’s hearing were encouraged by the changes to the duty of care section.
“The tools that would be required under KOSA are definitely workable,” Paul Lekas, executive vice president of Software & Information Industry Association, said. “The requirements to establish procedures and processes and so forth seem really well-designed to address the constitutional concerns that have come up with respect to earlier drafts of this legislation.”
But there were some disagreements on the panel over broader preemption clauses in all of the bills before the House committee. Lekas said he supports a “strong and preemptive” federal regulation. But Kate Ruane, director of the Free Expression Project at the Center for Democracy & Technology, warned a preemptive federal law could override even stronger protections enacted by states on the same issues.
Critics on different sides of the political spectrum have also raised free speech issues. That was a primary concern for House Republicans when the bill was up for consideration in the last session, including for House Speaker Mike Johnson, R-La.
Some LGBTQ+ groups, like Fight for the Future, have also flagged concerns that KOSA could lead to censoring or limiting access to resources like gender-affirming care and reproductive health for vulnerable minors, particularly for transgender kids.
At Tuesday’s hearing, Ruane said she worries platforms will play a guessing game of what type of content that may be harmful to minors.
That dovetailed with her concerns about the independence of the Federal Trade Commission under the Trump administration. President Donald Trump fired Democratic commissioners on the FTC. A federal district court judge said the firings were illegal, but the Supreme Court temporarily upheld it in an emergency order.
“If we do not have an independent FTC that is enforcing the law fairly as it applies to all children and protects all children, we have significant concerns about how these bills would operate in practice even if the way they are currently constituted as neutral and would protect everyone,” Ruane said.
When asked about the current FTC and its prospective role in enforcing KOSA, Blumenthal said he shared similar concerns.
“I’m not sure how we would exactly address it,” Blumenthal said, while adding that they could look into other possibilities of “enabling other enforcers and also safeguards against potential infringement on rights and liberties.”
“But I’m more worried about the absence of enforcement from an FTC that has no real regard for the law,” he added.
Blumenthal and Blackburn have brought up the Kids Online Safety Act in the past few sessions of Congress. The bill saw its biggest momentum last year, when it passed the Senate in a 91-3 vote.
But even after a last-ditch push by Elon Musk and other tech company executives to address GOP concerns over free speech, it stalled in the House without getting a floor vote before the end of last year.
Some major tech companies have endorsed the Senate version of KOSA. But NetChoice, a tech trade association representing members like Meta and Snap, has lobbied against passage in previous sessions of Congress. After Tuesday’s House hearing, the group was complimentary of House Republicans’ efforts on the 19 online safety bills before the committee and said it wants to work with the committee to “refine” the various tech proposals.
That could lead to an even bigger gulf between House and Senate lawmakers involved in trying to get children’s online safety protections signed into law.
On the Senate side, Blumenthal and Blackburn reintroduced KOSA earlier this year and are hoping for another vote in the Senate Committee on Commerce, Science and Transportation. The bill has already advanced out of that committee several times in past sessions.
They still see a path for working out the differences in Congress and trying to get it through this time around.
“This bill has a dynamic that eventually will push it over the finish line. Whenever I talk to parents, the No. 1 concern on their mind is their kids’ safety on the internet,” Blumenthal said. “So it’s just a question of what we can get done and how quickly.”
This story was originally published by the Connecticut Mirror.
