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Last month, we wrote a <a href="https://www.adventures-in-law.com/blogs/senate-passes-kosa-and-coppa-2-0/" target="_blank" rel="noreferrer noopener">blog</a> recapping the Senate’s passage of the Children’s Online Privacy Protection Act (COPPA 2.0) and the Kids Online Safety Act (KOSA) with a promise to keep a close eye on the House. You may recall that both pieces of legislation would significantly alter how minors are protected online. Well, we like to keep our promises, so we’re back with an update. Last week, the House Committee on Energy and Commerce advanced both COPPA 2.0 and KOSA.

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Representative Gus Bilirakis (R-Fl.), chairman of the committee’s Innovation, Data and Commerce Subcommittee and sponsor of KOSA, offered a <a href="http://docs.house.gov/meetings/IF/IF00/20240918/117432/BILLS-118-HR7891-B001257-Amdt-9-U9.pdf">substitute amendment, </a>which removed two key components of the bill. First, the amendment modified the list of harms that the bill sets forth. Specifically, the amendment removed the requirement that technology companies exercise “reasonable care in the creation and implementation of any design feature to prevent and mitigate the following [] harms to minors,” including mental health disorders such as anxiety, depression, eating disorders, substance abuse and suicidal behaviors. The second provision that the amendment removed would have required technology companies to design products in a way that would mitigate “patterns of use that indicate or encourage compulsive use by minors.” The committee adopted the amendment by a voice vote. Rep. Kathy Castor (D-Fl.), the lead co-sponsor of the bill, noted that the amended bill was a “weakened version” of the bill. Several other House Democrats echoed these comments, noting that they would vote against the measure. The amendment also received criticism from committee Democrats – Rep. Raul Ruiz (D-CA) issued a statement that the House’s version of the bill “only requires social media companies to guard against physical violence and harassment. That’s it.”

In a somewhat less contentious fashion, the committee approved COPPA 2.0, which would, among other things, extend certain protections to include children up to the age of 16; COPPA currently only applies to children under the age of 13. Rep. Frank Pallone (D-NJ), the ranking member of the Energy and Commerce Committee, offered a number of amendments that he later withdrew, including an attempt to add a significant amount of the federal data privacy bill as well as adding other data minimization and data broker requirements. Pallone did raise concerns about a provision in the bill that would create a “back door” for parents to obtain information about their child’s social media use from site operators without the child’s consent. “In a bill purportedly providing more privacy protection for teens, Congress is creating, in my opinion, a back door by which their parents can snoop on their teens’ every click online.”

Senators Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT), the Senate KOSA sponsors, issued a joint statement following the committee markup that noted “passage of KOSA is a positive step towards protecting our children online. While we still have more work to do on KOSA, we are pleased that we are one step closer to having this legislation signed into law before the end of the 118th Congress.”

The committee-reported and Senate-passed versions of KOSA no longer match, which will create some friction in securing congressional approval and sending the bill to President Biden. The House recessed for the election on September 26 without passing KOSA and will return on November 12 for the lame-duck session. There are several potential scenarios: the House could pass its version of KOSA after the election even though there are concerns from House Republican leaders and members on both sides of the aisle. Bicameral negotiations could also occur during the recess to develop compromise language. If negotiations are successful, a revised KOSA/COPPA 2.0 could be attached to “must-pass” legislation such as the National Defense Authorization Act or a government funding measure, both of which will be action items when Congress returns in November to complete the 118th Congress.

An Update on KOSA and COPPA 2.0