Bills that would strengthen online safety for young users have attracted bipartisan coalitions, but lawmakers are still separated over the level of regulation they would impose on social media companies, adding uncertainty to the effort’s prospects. 

That divide has come to the fore as the House is expected to consider on Monday a bipartisan House package by the leaders of the House Energy and Commerce Committee.

The package does not include the controversial “duty of care” provision that undergirds a key Senate bill, which led two prominent Democratic Senate backers to call on Friday for the House to delay a floor vote. The Senate bill sponsor, Sen. Marsha Blackburn, R-Tenn., last week also criticized the House package for leaving out the provision.

Any kids’ online safety package is also likely to contend with a White House generally hesitant to regulate the tech industry, including through its ongoing push to preempt state laws on artificial intelligence. 

And the push is also facing concerns on First Amendment grounds. Critics of the “duty of care” concept say it would unconstitutionally regulate speech, possibly leading online platforms to remove broad swaths of protected content.

House bipartisan approach

Energy and Commerce Chair Brett Guthrie, R-Ky., and ranking member Frank Pallone Jr., D-N.J., are backing their deal that would amend for floor consideration the bill that the committee advanced in March. The bill was among those slated for consideration Monday under suspension of the rules, an expedited process for generally noncontroversial bills that requires two-thirds majority support of those present and voting.

As approved by the committee, the underlying bill dubbed the Kids Internet and Digital Safety Act incorporated 12 measures, including bills focused on new parental controls for online gaming, direct and ephemeral messaging services and artificial intelligence chatbots. 

The bipartisan agreement would add a version of data privacy protections for children and teens and a new data broker registry. It also preempts state laws more narrowly, setting a floor rather than a ceiling, so that states could enact more restrictive measures.

The key sticking point is the included legislation known as the Kids’ Online Safety Act, or KOSA. It differs from the bipartisan Senate version sponsored by Blackburn, yet to advance in the chamber, that would place the “duty of care” requirement on social media platforms to prevent a litany of harms to minor users, including eating disorders, compulsive use and depression and anxiety.

The House bill would instead require platforms to “establish, implement, maintain, and enforce reasonable policies, practices, and procedures” to address a shorter list of harms: threats of physical violence, sexual exploitation and abuse, drugs, gambling and financial harms from deceptive practices.

On Monday, a group of 15 children’s and medical groups sent a letter to Energy and Commerce leadership in support of the KIDS Act, calling out the kids’ safety and data protections in particular.

Senate opposition

The House version has attracted criticism from backers of the Senate bill, led by Blackburn, who is running for governor in her state. In a statement on the release of the updated House bill, she made her bill’s stronger requirement for platforms a red line.

“Without a duty of care, Big Tech companies will maintain the status quo of putting profit before the safety of our children. We need a strong federal standard in place that will ensure Big Tech companies can’t design their products to addict, exploit, and harm America’s children,” 

Blackburn has been working with the White House on a package that would combine the KOSA measure with a bill that would create a property right to an individual’s voice and likeness in an effort to combat deepfakes, age verification requirements and preemption of some subject area state AI laws.

Her kids safety bill is awaiting markup in the Senate Commerce Committee. An industry source said they expect the markup will be scheduled in July, though Chairman Ted Cruz, R-Texas, has yet to indicate a timetable for committee action.

The committee’s ranking member, Sen. Maria Cantwell, D-Wash., at a virtual press conference Friday suggested the House should not move forward next week because not enough time has passed for lawmakers to study the bill. She said she didn’t understand what was in the legislation until she was able to perform an analysis of it.

She also asserted that the House version of the bill would allow for social media companies to get cases against them, like recent ones they lost in New Mexico and California, thrown out of court. 

“That’s why it’s so important to have them slow down and hear from the families and understand what the impact is,” Cantwell said.

Sen. Richard Blumenthal, D-Conn., one of the Senate bill’s 76 co-sponsors, said at the press conference that the House bill is weakened by the lack of the “duty of care” language. He expressed concern that if it is passed next week in the House, industry lobbyists could “exploit the kind of misunderstandings that can occur” between the two chambers’ bills.

“We need to stop this bill in the House and we need to prevent the White House from forming an alliance with Big Tech,” Blumenthal said.

Industry views

Neither bill is particularly popular with industry, though the House bill appears to be preferred over the Senate.

Zach Lilly, director of government affairs for tech industry group NetChoice, said in a statement the amended House bill “is a real effort to improve upon the disastrous censorship regime being championed in the Senate.”

“Unfortunately, any legislative effort that regards legal speech as inherently harmful will suffer from the same constitutional shortcomings,” Lilly said. “It does not pass the vital First Amendment test for how the government may regulate speech.”

The industry source said the House bill’s “reasonable” standard is more familiar for companies to operate under, while the “duty of care” is less tested, especially in the tech space. They added that they believe the House’s move towards a reasonableness standard is an attempt to avoid First Amendment concerns.

“The KIDS Act and the reasonableness standard is more about adopting policies and practices and procedures,” they said. “It’s much more focused on regulating conduct. Whereas… the Senate KOSA and the duty of care … is much more prescriptive when it comes to design features in a way that raises those constitutional concerns.”

Jenna Leventoff, senior policy counsel with the American Civil Liberties Union, is less sure that the House bill avoids crossing constitutional lines. 

“It still has a vague provision that could lead to the takedown of information. Less information, to be sure, a lot less information,” Leventoff said, going on to add that, “It could be very much carried out like the Senate’s duty of care.”

To illustrate First Amendment concerns, Leventoff gave the example of efforts to stop “sexual exploitation and abuse,” a harm included in both bills. A platform might block the word sex in an effort to hide harmful content, but end up blocking content related to sexual orientation or sex education.

Leventoff predicted that both bills will pass their respective chambers but that lawmakers may struggle to find a compromise deal.