Congress is fired up to protect kids online. Some are worried that, in the rush, everyone will actually get burned.
Lawmakers worked for months on a wide range of bills designed to shield under-18 internet users from social media’s dangers, including the spread of child abuse material, bullying, and glorification of self-harm.
At a time when anger at tech is one of the few unifying political forces, Congress may have a unique opportunity to overcome its traditional fecklessness, in-fighting, and ignorance on regulating tech, all in the name of children.
Yet some in the civil liberties and children’s advocacy communities worry proposed legislation could actually exacerbate many of the current concerns about the internet, particularly in the realm of privacy.
Even some corporations that hope Congress will finally give them a single unified privacy standard across the U.S. are quietly fretting that too-popular-to-oppose efforts only on behalf of children and teens will dominate the legislative calendar and prevent comprehensive reform, monopolizing all the political will needed.
“These bills are going to make kids less safe,” Sen. Ron Wyden (D-Ore.), a longtime opponent of surveillance and advocate of free speech online, said at a press conference hosted by civil liberties groups earlier this month.
Chief among them is the EARN IT Act, an effort to open up tech platforms to more lawsuits over child abuse content. But Wyden and advocates also are concerned about the Kids Online Safety Act (KOSA), which would implement safety-by-design standards on social media platforms and other measures. Together they have prompted some concern among advocates that the bills will take up precious legislating time, political clout, and energy for negotiations that could otherwise be spent reforming social media on behalf of all users.
Wyden told the press conference: “I think the most important thing Congress can do to improve the internet for kids and everybody else is to pass comprehensive privacy legislation.”
The EARN IT Act, a bipartisan effort that has been introduced before, is a response to the proliferation of sex abuse content. Yet the bill is the subject of persistent concerns from the civil liberties community that the practices it will urge on companies will ultimately cause firms to weaken digital encryption efforts, potentially building an FBI backdoor into everyone’s private DMs.
“At a time when we’re seeking to make the internet more private, more secure, the EARN IT Act … would be a step backward … increasing capitalist surveillance in the name of keeping kids safe,” said Cody Venzke, a senior policy counsel at the American Civil Liberties Union (ACLU). Representatives for EARN IT’s chief sponsor, Sen. Richard Blumenthal (D-Conn.), did not respond to questions about the criticism but have previously noted the bill says tech companies shouldn’t face lawsuits simply for refusing to weaken encryption.
“The EARN IT Act imposes basic accountability on tech companies that are complicit in the sexual abuse and exploitation of children,” Blumenthal said in a statement when he and Republican Lindsey Graham brought the measure back in April.
The bill alarms civil liberties advocates and tech companies more than any other legislation. It’s demonstrated its political potency already by advancing repeatedly through the Senate Judiciary Committee, including as recently as this month.
Blumenthal, meanwhile, is also behind the bipartisan Kids Online Safety Act (KOSA). The bill, an outgrowth of the Frances Haugen hearings documenting tradeoffs Meta made on the safety of young users in the pursuit of growth, would require social media platforms to let kids and teens to “disable addictive product features.” It would also push companies to mitigate harmful content pushing eating disorders, substance abuse, gambling, and more.
“Members of Congress and the public are finally realizing that, even with all the benefits that technology has brought forward, there are a lot of harms that need to be addressed,” said Rick Lane, an advisor to Rego, a digital wallet for kids. Lane, a former lobbyist who has long clashed with tech platforms and civil liberties advocates over the protections he’s urged, said social media should be safe by design and praised KOSA extensively.
Evan Greer, director of the civil liberties group Fight for the Future, which has been coordinating opposition to EARN IT and KOSA, however, slammed provisions in KOSA that allow state attorneys general to go after platforms if they’re not doing enough to mitigate harmful content.
Greer’s group, LGBTQ+ rights organizations, and others say that power would backfire and endanger youth, a boon to Republican states trying to rein in abortion rights and healthcare for transgender youth.
“It would empower state attorneys general to effectively dictate what content can be recommended to younger users,” Greer said.
Right now, there are many bills aiming to protect kids online—a goal that essentially everyone in tech policy says they support from a high level. Some of the current ideas have fairly broad backing, while others only prompt a few small worries from advocates. Greer, for instance, said her organization “strongly” supports cracking down on surveillance advertising to kids as well as “predatory and abusive design practices like autoplay, infinite scroll, and intrusive notifications.”
In addition to EARN IT and KOSA, there’s a bipartisan bill to require parental permission for teens under 17 to use social media. There are also efforts to try to give the government the power to ban TikTok and other Chinese tech, to ban targeted advertising to kids, and to make it easier to delete data on platforms with a click.
“This is an incredible moment,” said Jeff Chester, executive director of the Center for Digital Democracy, who has been pushing children’s protections online for decades. Yet even Chester said he has mixed feelings about the current spate of bills. He said it’s vital to put limits on surveillance advertising and testing for product safety, but he’s rankled by efforts to use government pressure to clamp down on content or the possibility of leaving adults unprotected.
“We shouldn’t just reduce it to kids,” he said. “That’s really the danger here.”
Chester and many consumer advocates have been clear that many of the best ideas to protect children are ones that they’d like to see all users get—and that lawmakers shouldn’t leave adults unprotected while patting themselves on the back for taking easy votes on behalf of youth.
In addition, there are concerns that prioritizing kids legislation by itself could fatally delay a larger privacy effort given lawmakers’ lack of public progress on the latter.
“Children obviously deserve privacy protections,” Hugh Gamble, vice president of federal government affairs at Salesforce, said. Gamble urged lawmakers to keep protections for kids, teens, and adults all moving together as one. “I do worry that if you start breaking it apart like that, you start taking some of the wind out of the sail for the larger components.”
Lawmakers have not yet reintroduced their updated versions of the privacy bills that advanced in the last Congress.
In the House, though, the Energy and Commerce Committee has held multiple hearings on the issue and GOP leaders suggested they will pair measures on behalf of kids with a comprehensive data-protection bill. Lane, of Rego, said that the political interest in helping kids and teens could actually boost a larger privacy measure if it were included.
By contrast, the Senate Commerce Committee, which would oversee privacy legislation, has held no hearings on data protection this year, even as some of the controversial standalone bills on kids move in the Judiciary Committee.
At a time when absences on both sides of the aisle have ground the Senate to a halt and bruising non-tech fights on issues like budgets are about to dominate congressional calendars, the slow movement on privacy has prompted worries that lawmakers will run out of time. The issue touches the whole economy and will require Congress to spend a lot of time making smart compromises—a commitment it might not be willing or able to make if it can say it already reined in tech by enacting easier-to-pass bills on kids.
Gamble suggested that Commerce panel’s chair, Sen. Maria Cantwell (D-Wash.) who last year bucked a bipartisan draft of privacy legislation that her colleagues in the House embraced, was moving too slowly as she tried to put her stamp on the issue.
“The engagement with Sen. Cantwell is an ongoing issue,” he said. “We’re just trying to create the sense of urgency amongst all of the participants in that conversation—her and others—that you’re going to eventually have to sit down at the table and figure this out.”
A spokeswoman for the Commerce Committee, Tricia Enright, noted in an email the panel’s many hearings on privacy in previous years and Cantwell’s urging of kids legislation at the end of 2022.
“There are a lot of tech-related issues requiring attention and the Committee is working on all of it. But, no matter what happens this year, Sen. Cantwell is determined to get legislation to protect children online passed through the Senate,” Enright said.
But in noting the senator’s urgency to protect kids, Cantwell’s team emphasized the exact concerns advocates have.
