U.S. Senate Majority Leader Chuck Schumer (D-NY) yesterday, July 23, initiated procedural steps that will likely lead to swift Senate passage of the Kids Online Safety Act (“KOSA”) and the Children and Teens’ Online Privacy Protection Act (“COPPA 2.0”). Both bills have been under consideration in the Senate and the House of Representatives for some time, which we have previously covered. Schumer’s action will likely bring the two bills in a single package to the Senate Floor as soon as Thursday, June 25. The future of the legislation in the House, however, is less certain.
KOSA, led by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), would, in its current form (S.1409), require specified “covered platforms” to implement new safeguards, tools, and transparency for minors under 17 online. These covered platforms:
- Would have a duty of care to prevent and mitigate enumerated harms.
- Must have default safeguards for known minors, including tools that: limit the ability of others to communicate with minors; limit features that increase, sustain, or extend use of the platform by the minor; and control personalization systems.
- Must provide “readily-accessible and easy-to-use settings for parents” to help manage a minor’s use of a platform.
- Must provide specified notices and obtain verifiable parental consent for children under 13 to register for the service.
KOSA also requires government agencies to conduct research on minors’ use of online services, directs the Federal Trade Commission (“FTC”) to issue guidance for covered platforms on specific topics, and provides for the establishment of a Kids Online Safety Council. The FTC and state attorneys general would have authority to enforce the law, which would take effect 18 months after it is enacted.
In a press conference yesterday, Blumenthal and Blackburn touted 70 bipartisan Senate cosponsors and called for quick Senate passage of the bill without further amendment.
COPPA 2.0, led by Sens. Ed Markey (D-Mass.) and Bill Cassidy (R-La.), would, in its current form (S. 1418), update the 1998 Children’s Online Privacy Protection Act (“COPPA”), which restricts the online collection of personal information from children under the age of 13. COPPA 2.0 would amend COPPA’s existing protections for children under the age of 13 and create new protections for teens under 17 years old. The bill:
- Expands the types of operators subject to the law and expands the definition of “personal information.”
- Restricts the collection, use, and disclosure of children and teen’s under 17 personal information for certain types of advertising to those groups.
- Expands COPPA’s application to operators with “knowledge fairly implied on the basis of objective circ*mstances” that a particular user is a child or teen under 17.
- Provides new rights to teens and expanded rights to parents of children, including the right to delete personal information collected from the child or teen and “content or information submitted by” the child or teen.
- Limits the circ*mstances in which personal information of a child or teen under 17 may be processed.
COPPA 2.0 also has significant bipartisan support, and it passed the Senate Commerce Committee unanimously.
Procedurally, Schumer yesterday announced that he would use a House Message as the vehicle for this legislative package, a strategy that sidesteps some procedural hurdles toward a full Senate vote. This strategy entails using a bill—the Message—that has been amended by the House and sent back to the Senate and is so eligible for fast-tracked consideration because senators cannot filibuster the motion to proceed to the legislation on the Floor. Next steps include filing and voting on cloture, which would cut off debate on the legislation and allow for a full Senate vote soon thereafter. A vote on cloture is expected as soon as Thursday, July 25.
If the Senate ultimately passes the legislation, it would then return to the House, where its prospects are less certain. House Speaker Mike Johnson (R-La.) reportedly said yesterday that he is “looking forward to reviewing the details of the legislation that comes out of the Senate” and is “committed to working to build consensus in the House.” However, the House is now scheduled to adjourn one week earlier than expected, beginning tomorrow through September 9, so House consideration of the updated package will not occur until at least then.
Two bills noticeably not announced to be in this legislative package include the EARN IT Act and the STOP CSAM Act, both of which would revise the framework governing the prevention of online sexual exploitation of children. EARN IT, which has had strong bipartisan support and significant process, may be absent from the package due to controversy as to its impact on Section 230 of the Communications Decency Act. Both pieces of legislation, however, could technically still be offered as amendments as the full Senate considers the legislative package.
