House online safety bills take narrower approach than Senate

House Republicans on Tuesday defended a slate of bills addressing online safety for children as a “durable” strategy that still protects First Amendment speech. Democrats, meanwhile, called the bills “weak, ineffectual” versions of previous legislation and expressed concerns about data privacy, including age verification requirements.

The House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade held a hearing on a bill to require online platforms to implement “reasonable” policies and procedures to prevent certain harms to minors, another to prohibit targeted online advertising to children and teens, and 17 others focused on online safety for kids.

Prospects for passage of the major bills are unclear, especially as they face opposition from Big Tech as well as many Democrats. However, Speaker Mike Johnson offered a glimmer of hope Tuesday that at least some of the bills would see floor action this Congress.

“I’m very hopeful that it’s something that can pass,” he told reporters when asked about the hearing and the bills’ chances for passage. “I’ve talked to the leaders, the authors of the previous bill, about concerns that were expressed and that they work to address that. So I hope and assume that they have.”

The measure to prevent harm to minors online, an as-yet unnumbered bill called the Kids Online Safety Act and sponsored by subcommittee Chair Gus Bilirakis, R-Fla., represents a less aggressive approach than has been taken in the Senate. There, Sen. Marsha Blackburn, R-Tenn., has sponsored KOSA legislation that would create a “duty of care” for platforms to address a larger number of harms, including those associated with compulsive use of social media.

Bilirakis said the bills before the committee, including his version of KOSA, are “mindful” of court challenges to state laws on platform design based on speech protections.

“Laws with good intentions have been struck down for violating the First Amendment,” he said. “We are learning from those experiences, because a law that gets struck down in court does not protect a child.”

The chair of the full committee, Rep. Brett Guthrie, R-Ky., echoed Bilirakis’ concerns about legal challenges and said the legislation before the committee would “work in harmony” to address online safety.

Rep. Frank Pallone Jr., D-N.J., ranking member of the full committee, bemoaned the lack of a comprehensive data privacy bill in the committee’s slate, but acknowledged the difficulty of passing such a bill and noted bipartisan support for children’s safety online.

“The urgency of addressing harms to children and teens presents an opportunity to make progress towards ensuring the internet is a safer place for all Americans,” he said.

KOSA and COPPA 2.0

Last Congress, Bilirakis sponsored the House version of Blackburn’s KOSA bill, including the “duty of care” provision. The Energy and Commerce Committee reported that bill to the full House, but it did not receive a floor vote.

Blackburn introduced her bill in May, but the Senate Commerce Committee has not marked it up. A version of the bill last Congress was forwarded by the committee with bipartisan support.

The Senate bill would require platforms to design their systems so they don’t contribute to a list of specific harms, including: eating disorders, substance use and suicide; depression and anxiety related to compulsive use; physical violence; sexual exploitation; drug sales; and financial harms caused by deceptive practices.

Bilirakis’ version shortens the list to threats of physical violence, sexual exploitation, drug sales and financial harms caused by deceptive practices.

The difference addresses worries that Blackburn’s version would be struck down under strict First Amendment scrutiny based on a decision earlier this year by the U.S. District Court for the Northern District of California to block enforcement of a California law that required platforms to design age-appropriate systems. That lawsuit, brought by tech trade organization NetChoice, hinged on free-speech concerns.

In a statement, Amy Bos, vice president of government affairs for NetChoice, expressed support for some of the bills under consideration, including those to undertake a campaign on safe internet use for kids and an unnumbered bill to require a review on industry safety efforts for kids online. However, she also called the Senate version of KOSA “deeply flawed” and said it would “force platforms to censor lawful speech based on vague standards.”

The unnumbered bill to prevent targeted advertising to children and teens would modify the Children’s Online Privacy Protection Act. In May, the Senate Commerce panel approved a similar bill, introduced by Sen. Edward J. Markey, D-Mass., and co-sponsored by a bipartisan group of 20 senators.

The Senate bill, known as COPPA 2.0, would revise the original requirement that companies have “actual knowledge” that a user is a child before they’re required to get parental consent for disclosing the user’s data. The new language would change that standard to “actual knowledge or knowledge fairly implied on the basis of objective circumstances.”

The House bill would instead create a tiered system in which smaller companies would be governed by the “actual knowledge” standard and larger platforms would need parental consent if they “willfully disregarded information that would lead a reasonable and prudent person to determine that a user is a child or teen.”

Age verification and parental controls

Earlier this year, the Supreme Court upheld a Texas law that requires pornography sites to verify users’ ages to prevent children from viewing sexually explicit content. The court later refused to enjoin a Mississippi law under appeal that requires social media platforms to verify users’ ages, get parental consent for use by children and work to prevent children from accessing “harmful material.”

Several of the bills before the House committee would take up the age-verification strategy, while others would give parents greater access to and control over their children’s online interactions.

“Age verification is needed first and foremost, including appropriate parental consent, even before logging in,” Guthrie said. “Once a user’s age is known, privacy protections … would be triggered.”

Pallone said such a bill could put children’s “data and physical safety more at risk.”

“I’m concerned that mandating third-party access to children’s data and requiring additional collection and sharing of sensitive data before accessing content, sending a message, or downloading an app would move us in the wrong direction in the fight for online privacy,” he said.

Rep. Jay Obernolte, R-Calif., said apps requiring an ID or other form of age verification risk creating targets for cybercriminals looking to steal private information.

“Let me just suggest that it’s much more efficient and much safer to do that just once at the operating-system level. And that means in the case of an iPhone, Apple would do it, and in the case of an Android phone, Google would do it,” he said.

Pallone also brought up concerns about bills that would give parents greater control over their kids’ accounts online.

“Unfortunately many kids find themselves in unsupportive or even abusive or neglected households,” he said. “There can be real-world harm from allowing parents complete access and control over their teens’ existence online.”

State preemption

Panelists at the hearing were divided on provisions in several bills that would preempt state laws related to the same topics as the bills.

Paul Lekas, executive vice president of the Software & Information Industry Association, testified in favor of a “strong and preemptive” federal law.

“The internet is not partitioned by state lines. The current patchwork of state regulations creates confusion for both platforms and consumers,” he said.

On the other side, Kate Ruane, director of the Free Expression Project at the Center for Democracy & Technology, urged Congress not to “unduly restrict states’ ability to act.”

“We’re concerned that the ‘relates to’ standard will broadly preempt many existing state laws and emerging legislation that provide significant protections to children online, even if state law would provide better protections for kids.”

Democrats came out against preemption, and the issue seemed to raise questions for some Republicans as well, including Rep. Cliff Bentz, R-Ore., who asked the panel about Congress “establishing a ceiling as opposed to a floor.”

Other bills on the slate would require age verification to view online pornography and ban disappearing message services for kids. The agenda also included unnumbered bills to ban social media accounts for minors and require artificial intelligence chatbots to disclose they are not human.

____

(Jacob Fulton contributed to this report.)