Two efforts aimed at keeping children safer online recently advanced in the Senate, but critics of the bills warn they may be a cure worse than the disease.
The Kids Online Safety Act, sponsored by Sens. Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN), aims to protect young users’ mental health online. It would require that social media platforms, such as Facebook or YouTube, provide minors options to disable “addictive” product features, opt out of algorithmic recommendations in favor of chronological formats, enable the strongest privacy settings by default, prevent “harmful” content from being displayed, and undergo annual independent audits of risks to minors.
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KOSA would establish a new, broader authority for the Federal Trade Commission and state attorneys general to police platforms. It was introduced in 2022 and reintroduced, with minor changes, by Blumenthal and Blackburn, usually political opposites, in May of this year.
The other child online safety bill moved out of committee deals more directly with data collection and would expand a 1998 law, the Children and Teens’ Online Privacy Protection Act, or COPPA 2.0. The updated measure aims to expand the user age covered to 16 years and would shift the entities covered from those with direct knowledge of serving minors to those “reasonably likely” to have children accessing their services.
Specifically, COPPA 2.0 would mandate data collection from those under 17 years old to first obtain parental consent, with state attorneys general now able to enforce the new rules. It also would require the FTC to establish a division focused on regulating youth privacy and marketing. The bill is sponsored by Sens. Ed Markey (D-MA) and Bill Cassidy (R-LA).
Both measures advanced out of the Senate Commerce, Science, and Transportation Committee unanimously on a voice vote.
But critics of the bill have long argued that it would cause more harm than good.
They point out that in order to comply with the new regulations for youth users, the age of all users would have to be determined by websites and platforms — that means an end to user anonymity online. Opponents of the measures argue that anonymous speech has a long, constitutionally protected history in the United States for political speech and personal safety. The Supreme Court affirmed as much in a relatively recent 2011 case about banning the sale of violent video games to children without parental consent. In verifying the age of all users, that anonymity would likely be lost online.
Privacy advocates are also concerned. Because liability risks create incentives for platforms, websites, and apps to verify the age of all their users, there will be a great deal more information collected online. That aspect may cause serious privacy and security concerns. To avoid charges from the FTC and state attorneys general, it would be logical for online services not only to collect information verifying the age of their users but also to retain that information to defend themselves against future allegations from authorities.
That database might include government-issued IDs, birth certificates, or facial recognition results. Those databases, and their potential to be hacked or misused, cut against some congressional and agency efforts to stem the total amount of American personal data being gathered and stored online.
While the most recent version of KOSA explicitly states that nothing in the bill should be interpreted to mean age verification is mandatory, some experts say that’s not how implementation and compliance would work in the real world.
In a blog post, Center for Democracy and Technology policy analyst Aliya Bhatia wrote that the language “is essentially meaningless if the very nature of the bill requires online services to treat minors differently from adult users. Doing so would require online services to know the ages of their users, adults and children alike.”
KOSA may also raise the liability risks for website operators beyond what is affordable and what is acceptable under the First Amendment. If operators cannot accurately predict what may cause harm under the bill’s “duty of care” obligation, they may default to posting and hosting only what would be acceptable to the internet’s youngest, most sensitive users in order to stay within the bounds of the law. That incentive may curtail their ability to speak to an extent that violates their free speech rights.
“Minors are not a monolith, and what hurts one may help another,” technology think tank TechFreedom posted in reaction to the alleged free speech threats in KOSA. “This chilling effect is the precise reason courts have consistently held for decades that imposing a duty to protect listeners from harmful reactions to speech is unconstitutional.”
Others lauded the progress of the bills. Advocacy group Common Sense cheered the two bills’ advancement in a statement, saying, “By providing minors under the age of 17 with important new protections that are long overdue, these two bills, especially when considered together, hold social media platforms accountable for how they impact young users.” It urged Congress to pass the bills this year.
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State governments have also been active in legislating to protect children online. Utah, California, and Arkansas have all enacted differing laws regulating how children are treated online. These efforts face much of the same criticism as the two federal bills and will likely be challenged in court.
The fate of KOSA and COPPA 2.0 depends on enthusiasm from Senate Majority Leader Chuck Schumer (D-NY) for placing the bills on the legislative agenda and the Republican-led appetite for the measures in the House.
