Senate passes landmark bills to protect kids online, raising pressure on House

The Senate overwhelmingly passed a pair of bills to expand online privacy and safety protections for children on Tuesday, delivering a major win for parent and youth activists who have clamored for action against tech companies they say are endangering the well-being of kids.

The legislation, approved 91-3, would force digital platforms to take “reasonable” steps to prevent harms to children such as bullying, drug addiction and sexual exploitation, and it would broaden existing federal privacy protections to include kids and teens 16 years old and younger.

The bills - the Kids Online Safety Act, or KOSA, and the Children and Teens’ Online Privacy Protection Act, referred to as COPPA 2.0. - represent the most significant restrictions on tech platforms to clear a chamber of Congress in decades.

Proponents of the measures hope Senate passage will amplify calls for the package to be taken up in the House, where the bills have garnered bipartisan support but negotiations publicly unraveled last month amid infighting between House Republican leaders.

While senators have focused much of their tech accountability efforts on child online safety, House lawmakers for years have pushed instead to take up a broader data privacy bill that would cover all consumers, not just kids. The dueling approaches have bogged down negotiations and delayed attempts to get any legislation over the finish line.

Those disputes have thrown into doubt the fate of the proposals, which President Biden has indicated he would sign into law.

Senators began crafting KOSA, the child safety measure, after conducting an investigation into 2021 disclosures by Facebook whistleblower Frances Haugen showing that the social media company knew its products at times worsened body image issues for some teens. The explosive revelations sparked indignation and catalyzed the legislative push on Capitol Hill, where lawmakers have little to show for years of pledges to rein in the tech giants amid a litany of grievances.

The bill would create the new obligation for companies to mitigate potential harms to children, known as a “duty of care.” Since its introduction in 2022, a coalition of child safety advocates, youth activists and parents whose children’s deaths were linked to social media have urged lawmakers to act, forming a powerful lobbying force that gave lawmakers a visceral reminder of the potential stakes.

“Nobody would blame these parents if they preferred to process their pain in privacy, curse the darkness, but instead they’ve shared their stories, pushed the Senate into action,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said during a floor speech Thursday.

Maurine Molak, whose son David died by suicide after facing intense cyberbullying online, said at a news conference in the Senate last week that Congress should pass the proposals “because no other families should have to suffer the way we have.”

While KOSA has drawn broad bipartisan support in Congress, it has faced persistent opposition from tech industry and digital rights groups, who say it will chill speech online and force companies to collect even more data from users to comply with its obligations.

Evan Greer, director of the liberal activist group Fight for the Future, said enforcers could use the “duty of care” provision to force companies to suppress content they dislike, including “gender affirming care, abortion, racial justice, climate change, or anything else.”

Sen. Ron Wyden (D-Ore.), one of the three lawmakers who voted against the package, said in a post on X last week that he opposes KOSA because it could “be used as a tool for MAGA extremists to wage war on legal and essential information to teens.” Wyden also voiced concern that it could undermine privacy features like encryption. The bill’s proponents dispute the claims.

Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah) also voted against the bills.

The push to expand privacy protections for children dates back decades. In 1998, Congress passed the Children’s Online Privacy Protection Act, or COPPA, a watershed law requiring that websites and other online services obtain parental consent before collecting data from kids up to 12.

But Sen. Edward J. Markey (D-Mass.), who led the push to pass COPPA as a member of the House in the 1990s, said he was unsuccessful then in his effort to extend those protections to teenagers, as the new bill does.

“This is the first time in 26 years that we’ve been able to come back and to put the protections that were needed then, and are even more needed today, on the books,” Markey said in an interview.

If signed into law, COPPA 2.0 would widen the parental consent requirement for data collection to include information from children as old as 16. The bill would also ban companies from targeting kids and teens with advertising, a proposal Biden has vocally endorsed in his State of the Union addresses. KOSA has fomented more forceful opposition than COPPA 2.0.

Schumer combined the two measures into a legislative package that the Senate began to formally consider Thursday, while eschewing other proposals to bar young kids from accessing social media altogether or to give victims of child sexual abuse a way to sue platforms for facilitating improper contacts.

Odds for passage in the House this year appear dim. While Speaker Mike Johnson (R-La.) recently told CNBC he supports the idea behind the bills, the chair of a key committee considering the bills said House leadership has expressed concerns about the bills, without elaborating. And the chamber is only in session for just over a half dozen more weeks this year, with the election expected to sap lawmakers’ attention in Washington. The House broke early for its annual August recess last week without rescheduling a markup for the bills.

Spokespeople for Johnson and House Majority Leader Steve Scalise (R-La.) did not respond to multiple requests for comment. A spokesman for Rep. Cathy McMorris Rodgers (R-Wash.), whose committee recently yanked the bills from a legislative markup in the House, said she is “pleased to see the Senate take this step and is fully committed to working together to continue advancing these important policies.”

Even if signed into law, the legislation is likely to face legal challenges from the tech industry, which has successfully halted parallel child online safety laws at the state level. While many cases are ongoing, federal judges have repeatedly expressed free-speech concerns over states’ efforts to regulate social media companies, dealing a series of blows to laws aimed at protecting kids online.

NetChoice, the tech trade association that has challenged those laws, has called KOSA “unconstitutional,” citing injunctions they secured against states as legal precedent.

Chris Marchese, who leads the group’s litigation center, said Friday that the bill follows the same “model of unconstitutionality” as a defunct California law that sought to restrict the sale of violent video games to minors. The Supreme Court struck it down in 2011, ruling 7-2 that the sales were protected under the First Amendment.

NetChoice counts Google, Amazon and Meta as members, among others. (Amazon founder Jeff Bezos owns The Washington Post.)

Proponents of KOSA have pushed back on those claims, arguing that the bill sidesteps thorny constitutional debates about speech online and instead seeks to bring consumer safety protections to social media, like regulations requiring seat belts in cars. Some tech companies have endorsed the bill, including Snapchat, LinkedIn-owner Microsoft and Elon Musk’s X, formerly Twitter.

“This is about product design,” Sen. Marsha Blackburn (R-Tenn.), who co-authored KOSA alongside Sen. Richard Blumenthal (D-Conn.), said during a news conference Thursday.

NetChoice Vice President Carl Szabo said COPPA 2.0 also raises “constitutional questions,” but the group has not opposed that bill as forcefully as KOSA.

For Congress, Blumenthal said Thursday, action against the tech giants was long overdue.

“It is a historic moment because … Congress is finally imposing some accountability on an industry that has gone totally non-responsible and irresponsible for decades now,” Blumenthal said.