The House is not planning to take up Senate-passed legislation to protect children from potentially harmful online content without addressing Republican concerns that the bill could lead to censorship or other unintended consequences.
Changes won’t come easily. House aides and outside stakeholders told The Washington Times that it’s unclear whether lawmakers can negotiate a compromise on an issue they largely agree is important but tricky to legislate.
“There’s support across the board for high-level policy goals around keeping kids safe, protecting kids online,” said Mark Brennan, a partner at Hogan Lovells and leader of the firm’s technology regulatory team. “It’s in some ways a notable reflection of the problems with this legislation … that there are such a wide array of constituents that are expressing significant concerns.”
The Senate navigated through some of those concerns as it passed legislation last month in an overwhelming 91-3 bipartisan vote that combined two bills, the Kids Online Safety Act (KOSA) and an update to the 1998 Children and Teens’ Online Privacy Protection Act (COPPA 2.0), but issues about free speech and privacy remain significant obstacles in the House.
KOSA would require social media companies to enable the strongest privacy settings for children by default and to disable automated algorithms and features that show addictive products, among other provisions designed to protect children from potentially harmful online content.
The measure would impose a “duty of care” requiring online companies to design content offerings that protect minors from specific harms, including suicide, mental health disorders, substance abuse, violence, bullying and sexual exploitation. The Federal Trade Commission would be empowered to bring enforcement actions against companies that don’t meet KOSA standards.
COPPA 2.0 would update a law that prohibits online services from collecting certain personal information from children without parental consent. It would raise the age at which the prohibition ends from 13 to 17 and tighten the standard under which companies are expected to enforce it.
Supporters want the House to take up the Senate-passed legislation after the chamber returns from its summer recess in September, but quick action is unlikely, with House Republicans declining to consider the bill as is.
“We’ve heard concerns from across our conference that the Senate bill cannot be brought in its current form,” said a House Republican leadership aide, who requested anonymity to share private discussions about the bill. “It could lead to censorship of conservative speech, such as pro-life views, is almost certainly unconstitutional, and grants sweeping new authority to unelected bureaucrats at the FTC.”
House Speaker Mike Johnson’s office pointed to comments he made to CNBC in July backing the legislation’s goals.
“Obviously, we need to protect children with regard to online activity,” he said. “The internet is the Wild, Wild West, and some of these reforms are overdue.”
House Energy and Commerce Committee Chair Cathy McMorris Rogers, Washington Republican, told The Times last month that she wants to advance the child online safety legislation through her committee but needs to discuss the best way forward with leadership.
The committee was scheduled to mark up KOSA and a broader data privacy measure in June, but Ms. McMorris Rogers canceled the session after leadership started raising concerns, particularly with the broader privacy bill.
Some outside observers predict the child online safety legislation is dead, at least for this Congress.
Yael Ossowski, deputy director of Consumer Choice Center, a nonpartisan consumer advocacy group, said everything he has heard suggests the measure will not advance in the House. He cited opposition from Freedom Caucus members and other Republicans “who are just very, very skeptical of giving government any more power.”
“We’ve had a lot of influence from government recently on social media firms, and that has led to a lot of censorship,” Mr. Ossowski said. “And our kind of fear is that if KOSA goes forward, you’re going to have that as the standard practice.”
House opposition to the legislation was always expected to be greater than in the Senate, said Ash Johnson, senior policy manager at the Information Technology and Innovation Foundation, a nonprofit, nonpartisan research and educational institute. She agreed that a compromise is unlikely this year, especially before the November elections.
“It’s all been very slow moving, and so I kind of expect that to continue, although I’m open to being surprised,” she said.
One major concern is that the bills are vague and leave companies with too many questions, starting with determining whether a user on their site is a minor. States that have enacted online safety legislation have encountered similar issues.
“The state bills, for example, have practically landed with companies all but required to do government IDs and similar age verification,” Mr. Brennan said. “That’s a significant First Amendment concern, not only for minors, who may not even have IDs, by the way, but for the adults that are seeking to access lawful content but have to have personal data collected.”
Mr. Ossowski said the increase in data collection would effectively end anonymity on the internet.
“It would give an avenue for government agencies, police agencies and its politically affiliated organization to basically go after that data, whether through legal subpoena or jawboning to get that information,” he said. “That would necessarily mean that many of the social media platforms would be very hesitant to allow X or Y speech on their platform.”
Without clarity on implementing the duty of care and other new content moderation standards in the bill, companies or the executive branch writing the regulations could overcorrect into censorship territory.
“Giving the government the power to determine what counts as harmful to children or harmful in general is definitely tricky because we, generally speaking, don’t want the government to weigh in on what speech is ‘good’ or ‘bad,’ but we obviously do want to protect children. And so it’s a really tricky balancing act,” Ms. Johnson said.
She said lawmakers are hesitant to act on any legislation moderating online content while court litigation challenging social media laws enacted by Florida and Texas is outstanding. The cases went to the Supreme Court, which sent them back to the lower courts with instructions to more broadly review the First Amendment implications of the state laws.
“We don’t really know where the needle is going to land on that,” Ms. Johnson said.
She suggested that lawmakers seeking a compromise remove the content moderation provisions altogether and pass the less controversial provisions in the bill. Those include provisions requiring companies to implement parental controls and optional privacy and safety settings for minors and publish more information on the availability of those safeguards.
“I think those are all really good measures and would make a huge difference,” Ms. Johnson said.
The bill’s supporters in the House remain hopeful for action in the coming months.
Rep. Gus Bilirakis of Florida, the lead Republican sponsor of the House version of KOSA, said he will do “whatever it takes” to build on the Senate’s success and “get meaningful legislation across the finish line.”
“I’m an eternal optimist — choosing to see opportunities where others might see challenges,” Mr. Bilirakis said in a statement. “It is critical that we implement better safeguards for children while empowering parents with the tools they need to keep kids safe.”
• Lindsey McPherson can be reached at lmcpherson@washingtontimes.com.
Please read our comment policy before commenting.