Kids Online Safety and Privacy Act Passes Senate, House Committee Passes New Version

Over the last few months, the U.S. Senate and the Committee on Energy and Commerce in the House of Representatives passed separate versions of the Kids Online Safety and Privacy Act (KOSPA). KOSPA is a vehicle for two internet privacy bills—the Kids Online Safety Act (KOSA) and the Children and Teens' Online Privacy Protection Act (COPPA 2.0)—and is designed to protect children from the dangers of the internet and social media.

Background

The first bill included in KOSPA is KOSA. In February 2024, the Senate garnered enough cosponsors to bypass a filibuster.^Footnote1 Under the Senate version of the bill, online platforms would have a "duty of care" for minors using their platforms.^Footnote2 Covered platforms would be mandated to provide minors with "readily-accessible and easy-to-use safeguards" to mitigate harms typically associated with minors' use of the platforms, including cyberbullying, mental health disorders, and sexual exploitation. The bill also requires covered platforms to provide options for deleting a minor's account and any personal data collected. The Senate version of the bill explicitly excludes higher education and libraries from its definition of "covered platform." However, it is unclear to EDUCAUSE whether institutions could be pulled into the requirements of the bill when they use connections or content from social media platforms on their websites and in their applications.

The second bill included in the KOSPA legislation, COPPA 2.0, modernizes the original COPPA passed in 1998 in order to account for the problems associated with minors' internet access. To address this shortcoming, COPPA 2.0 raises the age of children covered by the original law from those under thirteen to those under seventeen.^Footnote3 The bill also bans targeted advertising to children and teens covered by the legislation.

Senate and House Vote on KOSPA

In July, the Senate passed KOSPA with significant bipartisan support by a 91-3 vote. The three no votes came from Senators Ron Wyden (D-OR), Rand Paul (R-KY), and Mike Lee (R-UT), whose arguments for opposing the legislation focused on the unintended consequences of policing speech online. The bill was then sent to the House of Representatives for a vote.

The House Energy and Commerce Committee held a markup for KOSPA in September. During the markup, Republicans on the Committee considered a separate House version of KOSA with different language for the "duty of care" provision intended to safeguard children from harmful content. According to Republicans, the Senate's "duty of care" language would have led to First Amendment challenges from technology companies of all sizes, whereas their bill attempts to limit the "duty of care" to "high impact online companies" that generate annual revenues of at least $2.5 billion or have at least 150 million monthly active users.^Footnote4 Democrats on the Committee argued that the changes in the House version effectively gutted the bill. Still, Republicans moved forward with their version, acknowledging that the House and Senate would need to negotiate a final bill that could pass both chambers.

Despite the actions taken by the House and Senate, KOSPA still faces an uncertain future, especially during the 2023–2024 Congress. The House and Senate are out of session until after the 2024 election. When they return for the lame-duck period, both chambers have several other issues to address before the end of the year, which will likely delay the House and Senate reconciliation process for KOSPA. Given this time frame, Congress is unlikely to pass KOSPA during the current session, and it remains to be seen if the chambers will take up the bill during the next Congress.

EDUCAUSE will continue to monitor developments related to KOSPA and update members through future EDUCAUSE Review articles.

Notes

1. Bailey Graves, "The Kids Online Safety Act Faces an Unclear Future," EDUCAUSE Review, April 17, 2024 Jump back to footnote 1 in the text.↩
2. Kids Online Safety Act, S.1409, 118th Congress (2023–2024). Jump back to footnote 2 in the text.↩
3. Children and Teens' Online Privacy Protection Act, H.R.7890, 118th Congress (2023–2024). Jump back to footnote 3 in the text.↩
4. Kids Online Safety Act, H.R. 7891, 118^th Congress. Jump back to footnote 4 in the text.↩

Jennifer Ortega is a Partner at Ulman Public Policy.