Senate Commerce Passes 2 Kids’ Privacy Bills

The committee passed the Kids Online Safety Act (S-3663) with a 28-0 vote. The Children and Teens’ Online Privacy Protection Act (S-1628) passed by voice vote with at least three Republicans against. Ranking member Roger Wicker, R-Miss., said he couldn’t support S-1628 because comprehensive privacy legislation should be the committee’s focus.

Wicker urged Chair Maria Cantwell, D-Wash., to take up his American Data Privacy and Protection Act (HR-8152) from House Commerce Committee Chairman Frank Pallone, D-N.J.; ranking member Cathy McMorris Rodgers, R-Wash.; House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill.; and House Consumer Protection Subcommittee ranking member Gus Bilirakis, R-Fla. That bipartisan, bicameral privacy bill has the best chance of reaching President Joe Biden’s desk before the end of the year, Wicker said.

Sens. Marsha Blackburn, R-Tenn., and Mike Lee, R-Utah, voted against S-1628 over concerns about delegating the FTC too much rulemaking authority. Blackburn authored S-3663 with Senate Consumer Protection Subcommittee Chair Richard Blumenthal, D-Conn. S-3663 creates a duty of care for social media platforms to prevent and mitigate harm to minors, like content promoting self-harm, suicide, eating disorder, substance abuse and sexual exploitation. S-1628 updates the Children’s Online Privacy Protection Act and extends protection to minors under the age of 17, which was previously reserved for those under the age of 13.

Blumenthal told us he’s hoping for floor time in September for S-3663. “We’re going to be pressing that there be a vote as soon as possible,” he said. “Very rarely do we have this kind of broad, cosponsored and unanimous vote out of committee. There is clearly a will to do it. It’s all a matter of the leadership and timing.” Sponsors “look forward to moving forward, getting it signed into law,” said Blackburn, noting there are ongoing conversations about a House companion.

“There is very strong support for a privacy bill of rights for children, and that was reflected in the vote today,” Ed Markey, D-Mass., said of S-1628. “Now I’m going to be working with other senators to alleviate whatever concerns they may have about it, so that it has even stronger support as it goes to the Senate Floor.” Both Blumenthal and Markey said the bills could potentially be paired into a package. Leadership has said it wants to begin the discussion as soon as the committee advances the legislation, Markey told reporters after the hearing. Asked about floor time in September, Cantwell told us: “It depends on what our Republican colleagues do, whether they support them or don’t support them.”

Some platforms are knowingly abusing children’s data and sorting and profiling users before the age of 13, despite COPPA regulations, Cantwell said in her opening remarks. The Children and Teens’ Online Privacy Protection Act would close a loophole that allows companies to abuse children’s data and makes it harder for the FTC to prove violations, she said. The Kids Online Safety Act creates a duty of loyalty to prevent harm to minors, establishes safeguards for minors, transparency requirements and ways for researchers to study the effects of platforms on minors, she said. Wicker said the bill needs to be tightened by defining key terms and avoiding a state patchwork of privacy laws.

Sen. Deb Fischer, R-Neb., thanked sponsors for including an amendment incorporating key elements of her Deceptive Experiences to Online Users Reduction (Detour) Act (see 2206150068), which she introduced with Senate Intelligence Committee Chairman Mark Warner, D-Va. Provisions included with her amendment would ban large platforms from using deceptive interface design, or “dark patterns,” she said.

Sen. John Thune, R-S.D., noted he had considered filing an amendment that would have incorporated his bipartisan bill with Sen. Brian Schatz, D-Hawaii, the Filter Bubble Transparency Act (S-2024). He asked for Cantwell to consider the bill at a future markup, saying platforms should be required to let users know how algorithms control what they see. Sen. Amy Klobuchar, D-Minn., said she agreed with Thune that the bills passed Tuesday aren’t the only solution to Big Tech issues. She called for support for her competition legislation (see 2207260068), which she said has the votes, despite reports that Senate Majority Leader Chuck Schumer, D-N.Y., doesn’t believe the bill has the 10 Republicans needed to pass.

Blackburn said she’s confident she could be swayed to support Markey’s legislation, but the bill needs to be tightened up in terms of ensuring the FTC “stays in its lane.” Lee said he supports common sense proposals like those in Markey’s bill, which would extend COPPA protections to mobile apps. But he said the bill delegates “substantial” rulemaking authority to the FTC, and Congress should have greater say in the definition of the legislation’s terms. Lee offered nine amendments that were incorporated into Blumenthal’s bill prior to the markup. Those amendments provide better legal certainty for companies, said Lee.

The Software & Information Industry Association “supports protecting children's privacy and safety,” said Vice President-Education and Children’s Policy Sara Kloek. “The bills considered in today's hearing include many well-intentioned provisions but need further refinement.”

The committee advanced the nomination of Arati Prabhakar to serve as director of the White House’s Office of Science and Technology Policy (see 2207200063) with a 15-13 vote. Sen. Roy Blunt, R-Mo., was the only Republican to support the nomination. Wicker said he couldn’t support advancing the nominee because the process was rushed, and there are outstanding questions regarding Prabhakar’s stances on reproductive rights.