• by Wendy Davis , Staff Writer @wendyndavis, July 27, 2023

Lawmakers on the Senate Commerce Committee on Thursday advanced the controversial Kids Online Safety Act, but also made vague promises to modify the measure before it reaches the Senate floor.

The bill broadly aims to regulate how social media platforms display ads and content to minors the platforms know or should know are under 17.

Among other provisions, the measure appears to prohibit platforms from using behavioral advertising techniques to reach users 16 and younger. The current language includes a ban on what the authors call “individual-specific advertising” -- loosely meaning ads based on demographic profiles, unique identifiers, or personal information -- to users under 17.

The bill also would require platforms to take “reasonable measures” to prevent and mitigate potential harms associated with social media use -- including depression, eating disorders, and online bullying -- when displaying material to users the platforms know or should know are 16 or younger.

The measure tasks the Federal Trade Commission and state attorneys general with enforcement.

Some youth advocates including Fairplay support the bill.

“In the 25 years since Congress last passed meaningful online protections for children, social media platforms have honed their manipulative design techniques in order to addict children to their products and capture young people's attention and data. As a result, countless young people are harmed online in serious and preventable ways every day,” Fairplay stated Thursday.

But other organizations, including numerous digital rights groups, are sounding the alarm about the proposed law, arguing it would violate the First Amendment rights of teens as well as adults.

One concern is that the bill could prevent teens from viewing content protected by free speech principles. The First Amendment generally protects content regardless of whether it's considered harmful by law enforcement -- including photos associated with eating disorders, to “hate speech,” to material discussing drug use.

But the Kids Online Safety Act appears to empower state attorneys general to prosecute platforms over material deemed “harmful” despite the First Amendment. Opponents have called particular attention to the possibility that attorneys general would use the bill to suppress lesbian and gay material.

“At a time when books with LGBTQ+ themes are being banned from school libraries and people providing healthcare to trans children are being falsely accused of “grooming,” [the Kids Online Safety Act] would cut off another vital avenue of access to information for vulnerable youth,” more than 90 groups said in a letter sent to lawmakers last year.

Committee Chair Maria Cantwell acknowledged that concern on Thursday, and said the Senate plans to work with advocates to address the issue, but didn't provide any specifics.

Another concern raised by opponents is that the measure could effectively require platforms to verify all users' ages -- which likely would deprive all users, adults as well as minors, of their long established First Amendment right to access information anonymously.

The bill authors apparently attempt to downplay this concern by saying the restrictions apply when companies have “actual knowledge” or “knowledge fairly implied on the basis of objective circumstances” that a user is under 17.

But that language isn't doing much to ease concerns.

The group TechFreedom said this week in a letter to lawmakers that it's not clear what “knowledge fairly implied” means, or how that phrase will be interpreted by the law's enforcers.

“This uncertainty alone makes age verification the most risk-averse, 'reasonable' course of action for platforms,” TechFreedom free speech counsel Ari Cohn and president Berin Szoka wrote.

The committee on Thursday also advanced a second bill relating to teens and privacy. That measure, the Children and Teens’ Online Privacy Protection Act, would prohibit websites and apps from collecting a broad range of data -- including device identifiers, biometric information and geolocation -- from users between the ages of 13 and 15 without their express consent.

It's not yet clear whether either bill will actually move to the Senate floor, much less advance in the House. Last year, the Senate Commerce Committee also passed versions of the same two bills, but the full Senate didn't vote on either.