ADventures in Law

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While comprehensive privacy legislation is unlikely this Congress, on July 30, the U.S. Senate, overwhelmingly passed a legislative package that includes the Kids Online Safety Act (KOSA) and the Children and Teens’ Online Privacy Protection Act (COPPA 2.0) by a 91-3 vote. Both bills are aimed at increasing children’s privacy online. Sen. Maria Cantwell (D-WA), chair of the U.S. Senate Committee on Commerce, Science, and Transportation, spoke on the Senate floor about a <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0295337">Harvard University study</a> that found social media companies generated $11 billion in revenue from ads aimed directly at children and teens in 2022. Sen. Cantwell implored her colleagues to pass this legislation and take a step forward to help protect children from online harassment and bullying that can lead to devastating consequences such as child suicide.

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So, what do these bills actually do?

Sen. Edward Markey (D-MA) introduced <a href="https://www.congress.gov/bill/118th-congress/senate-bill/1418?q=%7B%22search%22%3A%5B%22Children+and+Teens+Online+Privacy+Protection+Act%22%5D%7D&amp;s=1&amp;r=1">S.1418</a>, the “Children and Teens’ Online Privacy Protection Act,” more commonly referred to as “COPPA 2.0,” with Sen. Bill Cassidy (R-LA) to amend the Children’s Online Privacy Protection Act of 1998 to strengthen protections for the online collection, use and disclosure of personal information of children and teens. Senator Markey <a href="https://www.markey.senate.gov/news/press-releases/senator-markey-celebrates-coppa-20s-unopposed-advancement-through-commerce-committee-leap-forward-in-protecting-young-americans-online">released a statement</a> noting that “[t]he internet has changed dramatically since Congress passed my COPPA legislation more than two decades ago—but our online privacy rules for young people have not kept up. As Big Tech turns to artificial intelligence to supercharge its targeted advertising and black-box algorithms, Congress has a moral obligation to deliver for the kids, teens, parents, physicians, and public health experts who are demanding we act to address our skyrocketing youth mental health crisis.” The most notable change is that COPPA 2.0 raises the minimum age of children covered by the law from 13 to 16 – companies would now need consent for collection of personal information for children who are 16 and under.

Specifically, COPPA 2.0 would:

Prohibit Internet companies from collecting personal information from users who are 16 and under without their consent; &nbsp;

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Ban targeted ads to teens and children;&nbsp;

Revise COPPA’s “actual knowledge” standard to help eliminate the loophole allowing a platform to ignore children and teens on their site;

Create an “Eraser Button” that allows children and teens to delete their personal information;

Establish data minimization rules to prohibit the excessive collection of children’s and teens’ data; and

Establish a Youth Privacy and Marketing Division at the FTC.

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Sens. Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) authored&nbsp; <a href="https://www.congress.gov/bill/118th-congress/senate-bill/1409/text">S.1409, the Kids Online Safety Act (KOSA)</a>, which is designed to provide additional safeguards for minors on the Internet, include restriction of access to minors’ personal data, and create tools for parents, such as control of privacy and account settings, to strengthen supervisory capacity for parents.

Specifically, KOSA would:

Require platforms to enable the strongest privacy settings for minors when the platform knows the user is 16 or under;

Provide parents with controls to help protect children and provide parents and educators with a dedicated channel to report harmful behavior; and

Create a duty of care requiring online platforms to prevent and mitigate specific dangers to minors, including promotion of suicide, eating disorders, substance abuse, sexual exploitation, and advertisements for certain illegal products (e.g., tobacco and alcohol).

Now that the bills have passed the Senate, attention turns to the U.S. House of Representatives. The House recessed for the August District Work Period on July 25 and will return to Washington on Sept. 9. In a floor speech following the passage of both pieces of legislation, Senate Majority Leader Chuck Schumer (D-NY) urged the House to act on the legislative package when it returns from summer recess in September. House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) stated that her committee is planning to move forward with marking up both bills. Speaker of the House Mike Johnson (R-LA) expressed a bit more skepticism and some questions on the bills but noted their importance and stated, “I think we can work it out, and I’d like to get it done.” President Joe Biden has indicated that he would sign both bills and, in a statement following Senate passage of KOSA, the president encouraged the House “to send this bill to my desk for signature without delay.”

Even though Chair McMorris Rodgers is a strong proponent and the House sponsor of comprehensive privacy legislation, the Senate will not be able to pass a comprehensive bill before the end of this Congress. With the overwhelming Senate vote, there will be pressure on the House to pass the Senate versions of KOSA and COPPA 2.0 and forgo Energy &amp; Commerce Committee consideration. We will continue to keep a close eye on the House when it returns on Sept. 9 from summer recess.

Senate Passes KOSA and COPPA 2.0