A significantly changed “Kids Online Safety Act” emerges as one of the Senate Commerce chair’s countermoves to the “American Data Privacy and Protection Act” (ADPPA) moving to the full House.
In July, Senate Commerce, Science, and Transportation Committee Chair Maria Cantwell (D-WA) held a markup of two bills, either of which could have been the bill Congress passed in response to the focus on data privacy had ADPPA not come along. Cantwell has long eschewed the bill even though it uses the same framework as her data privacy bill, the “Consumer Online Privacy Rights Act“ (COPRA) (S.3195), with admittedly significant differences (see here for analysis and detail on the first iteration of COPRA that is almost the same as the latest version.) Cantwell vowed in early July to mark up privacy bills, and she was true to her word with both the “Kids Online Safety Act” (S.3663) and “Children and Teens’ Online Privacy Protection Act,” (S.1628) coming before the committee. This edition examines the significantly changed, and some would say weakened, “Kids Online Safety Act.”
The Senate Commerce, Science, and Transportation Committee marked up a pair of data privacy bills that focus on teens and children in late July as a countermove to the House Energy and Commerce Committee proceeding with marking up the “American Data Privacy and Protection Act” (ADPPA) (H.R. 8152), the broader bill that the chair of the Senate Commerce committee opposes. As has been extensively reported, Senator Maria Cantwell (D-WA) declined to join Ranking Member Roger Wicker (R-MS) and House Energy and Commerce Committee Chair Frank Pallone Jr. (D-NJ) and Ranking Member Cathy McMorris Rodgers (R-WA) in introducing ADPPA. Cantwell reportedly wanted a range of changes and refused her support. In early July, Cantwell had pledged to marking up data privacy bills pertaining to children and teens, in part, to appease Members of her committee inclined to support ADPPA.
And so, at the 27 July markup, the committee took up The “Kids Online Safety Act” (KOSA) (S.3663) (see here for more detail and analysis on the bill as introduced) and the “Children and Teens’ Online Privacy Protection Act,” (S.1628) (see here for more detail and analysis of the original version.) This edition of the Wavelength will analyze the first bill with the other to be analyzed in a forthcoming edition.
Cantwell may have been trying to appease Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN), the chair and ranking member of the Consumer Protection, Product Safety, and Data Security Subcommittee and are leads on many of these issues. At some point earlier this year, Blumenthal and Blackburn, the sponsors of KOSA, reportedly reached a deal on a data privacy bill before ADPPA that Cantwell spiked. Hence, Cantwell bringing their bill on online privacy for children and teens was probably, in part, an attempt to mend fences.
Blumenthal and Blackburn introduced KOSA earlier this year in response to the revelations of Facebook whistleblower Frances Haugen regarding how the company’s subsidiary Instagram knew its product was harming girls and teens with body-image issues. Blumenthal and Blackburn are the chair and ranking member of the Consumer Protection, Product Safety, and Data Security Subcommittee and are leads on many of these issues.
Blumenthal and Blackburn unveiled a new version of KOSA for the markup and a suite of changes to the new version of KOSA. Other Senators successfully added language changing KOSA. Moreover, Wicker indicated at the markup that a number of the changes came at his insistence and that he will need to see more changes if KOSA is to advance. For ease of comprehension, I will treat the Blumenthal/Blackburn substitute amendment and their amendment to this bill as one document unless necessary to do otherwise.
Overall, the version of KOSA that emerged from committee is weaker than the bill introduced in February, which was already one of the more social media platform friendly bills in the children and teen’s online privacy space.