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The Privacy Advisor | US Senate committee advances children's privacy bills Related reading: U.S. privacy legislation in 2023: Something old, something new?

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The U.S. Senate Committee on Commerce advanced two bipartisan bills to enhance protections for children online, in a move lawmakers called "critical" in addressing a "sobering" crisis.

The committee voted favorably to move the Kids Online Safety Act and the Children and Teens' Online Privacy Protection Act, leaving both eligible for consideration by the full Senate. The approvals came days after U.S. President Joe Biden directly endorsed the bills and reiterated he is been calling for enhanced children's privacy protections for two years.

"Kids data, their personal information is the raw material that Big Tech uses to power algorithms that push toxic content that harms children, that harms teenagers," Sen. Edward Markey, D-Mass., said. "We are sending a loud message to Big Tech that enough is enough. Enough prioritizing money over mental health. Enough prioritizing profits over people. Enough prioritizing growth and business over young people in this country. It's time for Congress to meet this moment and to act with the urgency that these issues demand."  

KOSA provides parents tools and safeguards to help protect children online and imposes a duty of care for tech companies to act in minors' best interests, while COPPA 2.0 expands the age of protection under the Children's Online Privacy Protection Act from 13 to 16 and bans targeted advertising to children and teens.

Both bills passed out of the committee last year but stalled on the floor, Committee Chair Sen. Maria Cantwell, D-Wash., said. Notably, neither children's bill has been introduced in the House to this point.

"While we are passing them again, we have work to do if we're going to get them over the goal line," Cantwell said.

Commerce Ranking Member Ted Cruz, R-Texas, noted while "improvements" have been made to both bills, more work is needed, particularly calling for the addition of a preemption provision.

"Since this committee last marked up KOSA, multiple states have passed laws that may be inconsistent with parts of this bill," he said. "I don't think it's a good idea to create a new litigation magnet when we have the opportunity in advance to solve future conflicts." 

The committee passed an amendment proposed by Sen. John Thune, R-S.D., that adds requirements under his proposed Filter Bubble Transparency Act of 2021 into KOSA. Thune said the provisions would require tech companies to notify users "if they are using an algorithm to manipulate the content that you see," and to provide users "the option of not being manipulated by an algorithm." 

"It's my view that this committee has a unique opportunity to exercise its jurisdiction to address many of the concerns we've all heard about social media's damaging effect on consumers. We've all heard the testimony time and time again in front of this committee that people aren't always aware of the way that Big Tech companies collect user data and mold online experiences for billions of users," he said. "I think it's time for us to act."

Committee members agreed, saying protections for children online should be a priority for lawmakers.

"The whole idea here is that so many of us have been involved in this issue, but yet we still haven't passed any laws," Sen. Amy Klobuchar, D-Minn., said. "Just the time for talk is done, because this is folding around us, as pointed out so well by so many of my colleagues. So I'm glad that we have some bipartisan support for this bill. I'm eager to support it and glad Sen. Thune put in his amendment on something critical — the manipulation of kids."

Children's advocacy group Common Sense Media applauded the committee's support of KOSA and COPPA 2.0. Founder and CEO James Steyer said the bills "would finally hold social media platforms accountable."

"These two pieces of legislation are top priorities for Americans across the country, for Common Sense Media, and for so many other important organizations because they are making up for lost time," Steyer said. "It has been a whopping 25 years since COPPA was originally enacted, and the law hasn't changed since, despite the incredible evolution of technology and the now-enormous role that it plays in our society."

The Center for Democracy and Technology disagreed, saying, as proposed, the bills present issues around age verification and privacy. The organization said KOSA "effectively requires online services to use invasive filtering and monitoring tools" and "creates disproportionate risks" for vulnerable children, while COPPA 2.0 "could end up costing most users their privacy — or being easily circumvented."

Cantwell said legislators plan to continue working to address concerns raised and expect to consider future bills addressing privacy issues, while Sen. Brian Schatz, D-Hawaii, said he is confident the proposed Protecting Kids on Social Media Act — which would require age-verification by social media companies, parental consent for users 13-17 and ban users under 18 from accessing social media — will be back before the committee in the fall.

A bigger question lawmakers need to consider, Sen. Peter Welch, D-Vt., said, is the need for a regulatory group, like his proposed Digital Platform Commission. U.S. Sens. Lindsey Graham, R-S.C., and Elizabeth Warren, D-Mass., introduced a similar proposal, the Digital Consumer Protection Commission Act, that would create an agency that could target big tech platforms for "failing to protect consumer privacy."

"The question for us is can we do things that are going to protect the public interest, especially kids, but the public interest writ large — competitors, commerce — without having the benefit of an agency that is properly staffed to stand up to Big Tech and advocate for the public interest," Welch said. "There have been so many individual bills that have been proposed by colleagues on both sides trying to deal with this. The time, in my view, has come for us to ask the question whether we need an ongoing agency, properly staffed, properly funded in order to stand up, protect public interest against the overweening power of Big Tech."  


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