The Kids Online Safety Act (KOSA), a landmark legislation aimed at protecting children's online safety, faces dim prospects of passage this session due to a deep divide between the Senate and House chambers. Despite garnering strong support, the bill has perennially struggled in Congress, and its fate remains uncertain.
The Duty of Care Provision
A central provision of the Senate bill, the duty of care, has become a major point of contention between the two chambers. The provision would legally require companies to act with reasonable caution to prevent causing foreseeable harm. However, House leaders strongly oppose including such language, citing concerns that it would expose industry to a raft of negligence lawsuits and potentially infringe upon citizens' First Amendment right to free speech.
Experts Weigh In
Experts and advocates acknowledge that the duty of care provision is a complex issue, with some arguing that it is difficult to define and implement parameters for what content is harmful. John Perrino, an expert at the Internet Society, noted that the duty of care is "where all the friction has been all these years, and until there's some kind of compromise on that — and at this point, everyone's dug in — it's really just difficult to move forward."
Kate Ruane, director of the Free Expression Project at the Center for Democracy and Technology, warned that the proposed limits could violate citizens' First Amendment right to free speech and keep people from accessing important information. "KOSA will allow the government to create incentives for censorship," she said.
The Bill's Progress
Despite the challenges, the bill has made progress, with the Senate Commerce Committee advancing it last Wednesday. The bill's fate now rests in the hands of Majority Leader John Thune (R-SD), who will decide whether to convene a full Senate roll-call vote. However, with a short legislative calendar and competing priorities, it is unlikely that the bill will pass by voice vote, and Thune may want to avoid the time-consuming cloture process.
A Growing Popular Uprising
The fact that House leadership is ready to defy a growing popular uprising against big tech over the inclusion of a duty of care underscores how extreme and potentially unconstitutional the provision is, according to Josh Withrow, a resident fellow at the R Street Institute. "Given the very few remaining days on the calendar this year before the election, even getting the bill passed through the whole Senate again this year is a little bit of a struggle, much less reaching an agreement with the House," he said.
However, kids' online safety advocates remain hopeful that the bill could get traction during the lame duck session between November and January. The political calculus could change after an election cycle that is expected to lean heavily Democratic, said Ruane.
A Major Roadblock Resolved
One major roadblock was a provision that would have preempted state-level kids' online safety laws. It was removed from the House version of the bill in June following intense bipartisan negotiations in the chamber's Energy and Commerce committee. The parents of children who have died due to bullying, sextortion, and the promotion of eating disorders on social media played a pivotal role in the negotiations.
A Knowledge Standard Compromise
Congress also reached a compromise on the so-called knowledge standard for the first time in this session. A knowledge standard refers to what a defendant is thinking while acting and is used to determine how much legal liability they face based on their knowledge of their actions. After long pushing an "actual" knowledge standard, House lawmakers have agreed to a tougher "constructive knowledge" standard, which deems platforms responsible for what they should know, not just what they actually know.
Josh Golin, executive director of the child advocacy group Fairplay, said that kids' online safety advocates are pleased with the progress they have made this session, even if final passage is in doubt. "Preemption was a huge difference between the House and the Senate," he said. "That got resolved. … That gives you hope that the duty of care can be worked out."
A Thornier Dispute
All sides agree that the potential inclusion of a kids' online safety duty of care provision is a thornier dispute and will therefore be harder to resolve. "There's a lot of uncertainty," Internet Society's Scott Perrino said. "The challenge of the duty of care is who's determining what's reasonable and what's not? That can, of course, change from administration to administration."
However, the public is increasingly angry and wants big tech reigned in, so lawmakers are feeling intense pressure, Golin said. He remains hopeful that a version of the bill with a duty of care will ultimately pass, even if not this session. "There are tremendous hurdles," he said. "But I do think if we pass out of the Senate, it will be the first time that both the House and the Senate have passed a version of KOSA and their versions have moved closer to each other than they were a year ago."
Maurine Molak, a mother whose 16-year-old son David killed himself due to cyberbullying on social media platforms, has been deeply involved in the Congressional negotiations over KOSA for four years. She co-founded Parents SOS, an advocacy group for grieving parents fighting big tech, and has flown to Washington, D.C. from her home in Texas more than 20 times to meet with lawmakers sculpting the legislation. Her side, she said, has "never been in this good a position." "We have worked so hard on this bill for four years," Molak said. "Me and many of the other parents who have shared the very worst days of our lives with these House members — we are not giving up."
Source: The Record