In rare bipartisan vote, U.S. Senate passes package aimed at protecting kids online

Oregon's senior U.S. senator, Democrat Ron Wyden, was one of three senators who opposed the legislation aimed at protecting children online. (Drew Angerer/Getty Images)

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WASHINGTON — Legislation aimed at protecting children online sailed through the U.S. Senate Tuesday, marking what could be the first update since the late 1990s for companies who interact with minors on the internet.

Senators approved the package of two bills in a 91-3 vote, a rare bipartisan landslide in the tightly divided body, despite loud and fervent opposition from civil liberties and LGBTQ organizations that say the measures would hand the government power to subjectively censor content.

The three no votes were cast by Mike Lee of Utah, Rand Paul of Kentucky and Ron Wyden of Oregon. (See Wyden’s explanation below.)

If passed by the House, the legislative package would require producers of platforms popular among children and teens to follow new rules governing advertising, algorithms and collection of personal data.

House Speaker Mike Johnson, R-La., has expressed interest in “working to find consensus in the House.”

President Joe Biden released a statement Tuesday calling the Senate vote a “crucial bipartisan step forward” and said the bill dovetails with measures he advocated for in his first State of the Union Address.

“There is undeniable evidence that social media and other online platforms contribute to our youth mental health crisis. Today our children are subjected to a wild west online and our current laws and regulations are insufficient to prevent this. It is past time to act,” Biden said, adding that tech companies need to be “accountable for the national experiment they are running on our children for profit.”

Families asked for federal help

The package contains two bills moving together: the Children and Teens Online Privacy Protection Act, which is mainly targeted at regulating the collection of personal data, and the Kids Online Safety Act, a bill that has been a lightning rod of criticism from outside groups.

A bipartisan group of senators points to years of hearings and meetings with tragedy-struck families — including those whose children struggled with eating disorders and died by suicide — as the motivation behind the proposals.

Sen. Marsha Blackburn, of Tennessee, one of the Kids Online Safety Act’s original sponsors, said the legislation is a “safety by design bill, a duty of care bill that gives kids and parents a toolbox so that they can protect themselves.”

“A message that we’re sending to big tech: kids are not your product, kids are not your profit source, and we are going to protect them in the virtual space,” Blackburn, a Republican, said at a press conference following the vote.

Blackburn co-led the bill dubbed the Kids Online Safety Act with Democratic Sen. Richard Blumenthal of Connecticut.

Sen. Ed Markey, who championed the last protections passed by Congress in late 1990s, said “back in 1998 only birds tweeted, a gram was a measurement of weight, and so we need to update the law.”

The Massachusetts Democrat joined Republican Sen. Bill Cassidy of Louisiana in co-sponsoring the Children and Teens’ Online Privacy Protection Act.

Markey likened addictive social media products to those of the tobacco industry in previous decades, and cited public health warnings attributing increasing childhood mental health issues to the platforms.

“So we have to give the tools to parents and to teenagers and children to be able to protect themselves, and that would be my message to my colleagues in the House. We cannot avoid this historic moment,” Markey said at the press conference.

Senate Majority Leader Chuck Schumer praised the legislation’s passage in the Senate and said the parents of affected teens are “the reason we succeeded today.”

“I’ve heard the terrible stories: children, teenagers, perfectly normal, then some algorithm captures them online by accident, and they end up committing suicide shortly thereafter,” the New York Democrat said in a statement. “You imagine being a parent and living with that.”

New rules for platforms

The original two bills, rolled into one legislative vehicle, respectively outline “duty of care” rules requiring platform creators to consider broad mental health categories when designing and operating their products as well as a prohibition of the use of personal data for targeted marketing.

The legislation would also mandate that platforms create an “easy-to-understand privacy dashboard” detailing how a minor’s personal information is collected, used and protected.

Other measures would include a prohibition on hidden algorithms, mechanisms for minors or parents to remove data, parental controls to restrict financial transactions and annual public reports from the platforms on “reasonably foreseeable” harms to children and teens and efforts underway to prevent them.

Enforcement

The new policies, if enacted, would be enforced by the Federal Trade Commission and any civil actions would be prosecuted by states in U.S. district court with advance notice to the FTC.

The legislation defines the online platforms as public-facing websites, social media applications, video games, messaging applications or video streaming services that are “used, or reasonably likely to be used, by a minor.”

Snap, the company behind the popular platform Snapchat, issued a statement specifically praising the Senate’s passage of the Kids Online Safety Act.

“The safety and well-being of young people on Snapchat is a top priority,” a Snap spokesperson said in a statement provided to States Newsroom. “That’s why Snap has been a long-time supporter of the Kids Online Safety Act. We applaud Senators Blackburn, Blumenthal and the roughly 70 other co-sponsors of this critical legislation for their leadership and commitment to the privacy and safety of young people.”

Opponents see ‘dangerous’ measure

A coalition of organizations advocating for First Amendment rights, privacy and the interests of LGBTQ minors urged the House to vote no on the legislation, criticizing it as “blatantly unconstitutional.”

Evan Greer, director of the tech policy group Fight For the Future, also lambasted the bill as “dangerous and misguided” and “wildly broad.”

The coalition largely takes issue with the Kids Online Safety Act’s “duty of care” provision that requires companies to “prevent and mitigate” harms associated with anxiety, depression, eating disorders, substance use disorders and suicidal behaviors.

During a joint virtual press conference hosted by the groups during the Senate vote, Greer described the provision as “a blank check for censorship of any piece of content that an administration could claim is harmful to kids.”

“What that means in practice, is that for example, a Trump administration FTC would get to dictate what types of content platforms can recommend or even show to younger users,” Greer said, referring to Republican presidential nominee and former President Donald Trump.

Jenna Leventoff, senior policy counsel at the American Civil Liberties Union, said the Kids Online Safety Act is “nothing more than a thinly veiled effort to censor information that some consider objectionable”

“If enacted, KOSA could lead to information about health care, gender, identity, politics and more being removed from social media. And kids note that censorship will make them less and not more safe,” Leventoff said. “As one student recently told me, they don’t get sex education in school, and if information about sex is removed from the internet because platforms fear liability for hosting it, how else can they learn about sex?”

Teens in opposition

The ACLU brought roughly 300 teens to Capitol Hill on Thursday to lobby against the legislation.

Dara Adkinson, of the organization TransOhio, said the legislation is “truly terrifying.”

Adkinson questioned whether state and federal authorities could argue that content about climate change or the nation’s history of slavery causes anxiety and should therefore be regulated.

Regarding content about transgender youth, Adkinson said: “We know there (are) people out there that would like us to not exist and having the lack of visibility of the kinds of resources found on the internet is the first step for many of these folks.”

Greer said the coalition is concerned about the role of “big tech” in society. Advocates would support a “heavily modified” version of the Kids Online Safety Act that focuses on regulating business practices, including targeted advertising or videos that automatically play and encourage continuous, addictive scrolling habits.

Greer said their organization is neutral on the legislation targeted at protecting children’s privacy, but that they would like to see comprehensive legislation that protects minors and adults alike.

“Censorship and privacy do not go together, and these should not be moving together,” Greer said.

U.S. Sen. Ron Wyden explains ‘no’ vote

Oregon’s senior U.S. senator, Democrat Ron Wyden, was one of only three senators who opposed the legislation. Wyden said in a statement, he strongly supports parts of the bill, especially provisions to safeguard the personal information of kids online. And he acknowledged that many changes had been to the Kids Online Safety Act to improve it, but said they still weren’t sufficient to secure his support. 

“I fear this bill could be used to sue services that offer privacy-enhancing technologies like encryption or anonymity features that are essential to young people’s ability to communicate securely and privately without being spied on by predators online,” Wyden said. “I also take seriously concerns voiced by the American Civil Liberties Union, Fight for the Future and LGBTQ+ teens and advocates that a future MAGA administration could still use this bill to pressure companies to censor gay, trans and reproductive health information,” Wyden said in a statement. “For these reasons, I cannot vote for this legislation.”

He said if the act is signed into law by President Joe Biden, he will work to watchdog the Federal Trade Commission to ensure kids benefit from a safer internet and to try to prevent his “worst fears” from coming true.   

“Whatever happens to this bill, I look forward to working with my colleagues on other initiatives, including regulating harmful and manipulative platform designs, to tackle the vital topic of kids’ safety online,” Wyden said. “I also remain convinced that this effort must go hand-in-hand with passing a strong baseline privacy law for all Americans.”