House panel approves child online safety bills, but floor vote is not guaranteed

The House Energy and Commerce Committee on Wednesday approved a pair of bills to protect children from harmful social media content, but a key GOP leader says further changes are needed before a floor vote.

The committee made changes to both the Kids Online Safety Act (KOSA) and the Children and Teens Online Privacy Protection Act (COPPA) to address concerns about censorship and regulation of free speech. But they were not enough to convince House GOP leaders the legislation is ready for prime time.

“There’s still more work to be done,” House Majority Leader Steve Scalise, Louisiana Republican, told The Washington Times.

KOSA requires social media companies to turn off data-driven algorithms for kids and ensure their accounts default to the strongest safety and privacy settings. It includes a “duty of care” standard that would require online companies to implement design standards that protect minors from specific harms and empower the Federal Trade Commission to bring enforcement actions against companies that fail to do so.

COPPA amends an existing law that prevents online companies from collecting data on children under 13, extending those protections through age 16 and updating what lawmakers say is a loophole in the law that allows Big Tech to ignore when children are on their platforms. It also bans targeted advertising to minors.

Several committee members mentioned that Meta announced changes to its Instagram policies for children a day before the markup but said those overdue tweaks don’t mitigate the need for a law.

The Senate passed both bills in a combined 91-3 vote in July, so a House vote is the last step before the legislation can become law.

Mr. Scalise said there would not be action on the legislation before the Nov. 5 election and declined to predict whether it could advance later this year before the current Congress ends. He said he’s provided feedback to Energy and Commerce members leading the bills, and “everybody’s going to keep working,” but the concerns raised by various ideological GOP caucuses are “important to note.”

Among the outstanding concerns is that the bills, particularly KOSA, give too much power to the executive branch to regulate online content.

“You want to protect kids, but you don’t want to give more ability to the Biden administration to censor conservatives. And unfortunately, they’ve abused these powers in the past,” Mr. Scalise said. “And so you got to narrow it. You got to focus it just on kids.”

Energy and Commerce Chair Cathy McMorris Rodgers told The Times that “there’s never been a perfect bill,” but she and other supporters would continue to work through the obstacles.

“It’s time for Congress to act to protect kids online. It’s long overdue,” the Washington Republican said. “This has been years; it’s been a very long process. And I look forward to working with leadership to get a bill onto the House floor.”

Ms. McMorris Rodgers is retiring at the end of this Congress, so this year is her last opportunity to advance the legislation, which she has said is a priority for her as a mother. During the committee markup, she teared up while showing pictures of “children no longer with us because of the dangers posed by the current state of social media and our online ecosystem.”

The committee adopted substitute amendments to both KOSA and COPAA over Democrats’ objections that the expansive new language was only provided to members the day before the markup.

The revised versions of both bills were adopted by voice vote, so it was hard to tell exactly how widespread the Democratic objections were, but they raised more vocal complaints about KOSA than COPPA.

Rep. Kathy Castor of Florida, the lead Democratic sponsor of both bills, said the revised KOSA bill is “weakened” compared to the Senate-passed version, but the updates to COPPA kept the Senate version “generally intact.”

Democrats’ main issue is changes to KOSA that watered down the duty of care standard, removing provisions that protected against mental health harms.

“The House bill only requires social media companies to guard against physical violence and harassment. That’s it,” said Rep. Raul Ruiz, California Democrat. “Not anxiety, not depression, not eating disorders, not substance use disorders and not suicidal behaviors.”

Mr. Ruiz and several other Democrats said they were voting against KOSA because of that significant change — “a loophole that a Peterbilt truck can drive through,” as California Rep. Anna Eshoo phrased it.

“It is a lesser, much-diminished effort on a critically important issue,” Ms. Eshoo said.

Florida Rep. Gus Bilirakis, the lead GOP sponsor of KOSA, said the “modest” change to the duty of care standard is designed “to ensure this bill will survive the scrutiny that the courts will apply.” Similar state laws have had issues surviving legal challenges.

The updated standard prohibits content and conduct that has previously been upheld as unconstitutional, Mr. Bilirakis said. “Sexual exploitation, drug and illegal sales marketing and physical violence are all harms that the government has a compelling interest to stop,” he said.

Mr. Bilirakis also said the revised KOSA adds language to clarify that it is not intended to hinder free speech. “Instead, it prohibits government enforcers from weaponizing this based on any users’ individual point of view,” he said. 

Some Republicans on the committee still had reservations. 

The duty of care standard remains “vaguely and poorly defined,” said Rep. Jay Obernolte, California Republican. “We’re not defining what it means to have met that duty of care.”

Rep. Dan Crenshaw said he was voting to advance KOSA “reluctantly,” given the authority it provides the Federal Trade Commission to regulate design features on social media platforms.

“You can’t manipulate algorithms without also manipulating content,” the Texas Republican said. 

Mr. Crenshaw predicted that if Congress passes the law, it would soon be conducting hearings “on how the FTC or social media companies have conducted very serious content throttling and censoring in order to avoid the liability that this new law would impose.” 

And if that prediction doesn’t come true, that means the companies and the FTC take a light touch in implementing the law, and kids’ safety is likely to still be threatened, he said. 

“I really don’t see how changing algorithms is going to save your kids either from harmful content or online bullying,” Mr. Crenshaw said. “So I do not want to sell parents a false bill of hope here.”

Rep. Morgan Griffith, Virginia Republican, said the bill is not perfect and Congress may need to make further tweaks in a year or two, but they need to pass a law to “see what works and what doesn’t work.” 

Ms. McMorris Rodgers and Mr. Bilirakis agreed with some of the concerns members raised during the markup and said they would work with them on further changes but warned against the consequences of inaction. 

“Big Tech wants you to vote no. They want you to kill this bill,” Mr. Bilirakis said. 

The Senate lead sponsors of KOSA — Republican Sen. Marsha Blackburn of Tennessee and Democratic Sen. Richard Blumenthal of Connecticut — commended the House Energy and Commerce Committee vote as “a positive step.” 

“While we still have more work to do on KOSA, we are pleased that we are one step closer to having this legislation signed into law before the end of the 118th Congress,” they said in a joint statement.