Controversial KOSA and COPPA 2.0 Bills Advance to Senate Floor

WASHINGTON—The Senate Committee on Commerce, Science, and Transportation today gave the green light for the Kids Online Safety Act (KOSA) and a bill to update the Children’s Online Privacy Protection Act (COPPA 2.0). Both bills are considered controversial among civil society organizations and the technology industry due to concerns ranging from privacy rights violations to the censorship of online material that is crucial for the youth part of the LGBTQ community. AVN reported that KOSA is widely condemned by civil liberties organizations, including the American Civil Liberties Union, Fight for the Future, and the Electronic Frontier Foundation.  Adult industry advocacy organization the Free Speech Coalition (FSC) and the Woodhull Freedom Foundation were among a coalition of organizations that submitted a joint opposition letter to the Senate committee in November 2022 when a variation of KOSA was introduced. The prime sponsors of KOSA, Sens. Marsha Blackburn, R-TN, and Richard Blumenthal, D-CT, commanded a bipartisan slate of sponsors signaling an easy breeze through the committee markup phase with a unanimous voice vote.  Now, KOSA goes before the entire Senate on a second reading debate where opponents of the legislation will present their case against the adoption of the bill. Evan Greer, the director of Fight for the Future who was live tweeting the committee hearing, pointed out that Sen. Ed Markey, D-MA, voiced concern over the current variation of KOSA and the potential harms it could place on LGBTQ youth. In an analysis, AVN pointed out that KOSA grants state attorneys general significant power to enforce the provisions of the bill and, virtually, a blank check to decide what is “harmful to minors.” This would lead to a non-uniform patchwork of rules, state by state. The ideological aspect of an elected attorney general could lead to limitations on information in a particular state that is otherwise accessible in others and is legal and protected. Meanwhile, the Children and Teens’ Online Privacy Protect Act, or COPPA 2.0, was also up for markup during the executive session of the committee. Sponsored by Sens. Markey and Bill Cassidy, R-LA, COPPA 2.0, while not as controversial as KOSA to some, was opposed by large technology companies and their trade associations. The bill raises the age of protection under the Children’s Online Privacy Protect Act from 13 years to 16 years, while adding new age-gating and verification restrictions and bans targeted digital advertising for kids and teens through a regulatory framework called the “Digital Marketing Bill of Rights for Teens.” “KOSA and COPPA 2.0 will create massive privacy and security problems for American families. Alternatively, NetChoice strongly recommends these meaningful, constitutional solutions that will empower law enforcement to stop child predators and equip Americans of all ages to develop healthy online habits in the Digital Age,” warns Carl Szabo, vice president and general counsel for NetChoice, in a press release. NetChoice is a trade group representing large technology companies like Amazon, PayPal, Meta Platforms and Alphabet-owned Google.  Another tech industry group, the Computer & Communications Industry Association (CCIA), issued a letter to leadership on the committee asking that KOSA and COPPA 2.0 be killed and that the legislative priority should be shifted to adopting a strong federal privacy law instead. “CCIA supports the broadly shared goal of protecting children online, but these bills raise serious First Amendment concerns that will result in the blocking of legitimate speech online and contain compliance ambiguities that mean users’ privacy rights and businesses’ obligations will change based on relatively small differences in product design,” said association president Matt Schruers, adding that lawmakers “should instead pass baseline federal privacy rules that offer protections for both children and adults.” CCIA membership also includes Amazon, Meta Platforms and Google. Senate leadership on the committee supported the passage of both bills.  “We have listened to many parents about their support of KOSA legislation and making sure that parents are empowered with tools they need to help protect the well-being of their children,” said committee chair, Sen. Maria Cantwell, D-WA, in a press statement, adding that she shares the concerns of Sen. Markey and activists like Greer over KOSA’s far-reaching potential for harm.  “I’ve heard from some advocates, particularly some in the LGBTQ community, about continuing concerns with this legislation, and we will continue to work with them on this,” added Cantwell. Sen. Ted Cruz, R-TX, the ranking member on the committee, has yet to issue a statement. Speaking on COPPA 2.0, Sen. Markey applauds the work of the committee advancing his bill. “The safety and well-being of kids and teens online is a kitchen-table, bipartisan priority for American families, and it should be a bipartisan priority in Congress,” said Sen. Markey.