U.S. Senate Majority Leader Chuck Schumer (D-NY) yesterday, July 23, initiated procedural steps that will likely lead to swift Senate passage of the Kids Online Safety Act (“KOSA”) and the Children and Teens’ Online Privacy Protection Act (“COPPA 2.0”).  Both bills have been under consideration in the Senate and the House of Representatives for some time, which we have previously covered.  Schumer’s action will likely bring the two bills in a single package to the Senate Floor as soon as Thursday, July 25. The future of the legislation in the House, however, is less certain.

KOSA, led by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), would, in its current form (S.1409), require specified “covered platforms” to implement new safeguards, tools, and transparency for minors under 17 online.  These covered platforms:

  • Would have a duty of care to prevent and mitigate enumerated harms.
  • Must have default safeguards for known minors, including tools that: limit the ability of others to communicate with minors; limit features that increase, sustain, or extend use of the platform by the minor; and control personalization systems.
  • Must provide “readily-accessible and easy-to-use settings for parents” to help manage a minor’s use of a platform.
  • Must provide specified notices and obtain verifiable parental consent for children under 13 to register for the service.

KOSA also requires government agencies to conduct research on minors’ use of online services, directs the Federal Trade Commission (“FTC”) to issue guidance for covered platforms on specific topics, and provides for the establishment of a Kids Online Safety Council.  The FTC and state attorneys general would have authority to enforce the law, which would take effect 18 months after it is enacted.

In a press conference yesterday, Blumenthal and Blackburn touted 70 bipartisan Senate cosponsors and called for quick Senate passage of the bill without further amendment.

COPPA 2.0, led by Sens. Ed Markey (D-Mass.) and Bill Cassidy (R-La.), would, in its current form (S. 1418), update the 1998 Children’s Online Privacy Protection Act (“COPPA”), which restricts the online collection of personal information from children under the age of 13.  COPPA 2.0 would amend COPPA’s existing protections for children under the age of 13 and create new protections for teens under 17 years old.  The bill:

  • Expands the types of operators subject to the law and expands the definition of “personal information.”
  • Restricts the collection, use, and disclosure of children and teen’s under 17 personal information for certain types of advertising to those groups.
  • Expands COPPA’s application to operators with “knowledge fairly implied on the basis of objective circumstances” that a particular user is a child or teen under 17.
  • Provides new rights to teens and expanded rights to parents of children, including the right to delete personal information collected from the child or teen and “content or information submitted by” the child or teen.
  • Limits the circumstances in which personal information of a child or teen under 17 may be processed.

COPPA 2.0 also has significant bipartisan support, and it passed the Senate Commerce Committee unanimously

Procedurally, Schumer yesterday announced that he would use a House Message as the vehicle for this legislative package, a strategy that sidesteps some procedural hurdles toward a full Senate vote.  This strategy entails using a bill—the Message—that has been amended by the House and sent back to the Senate and is so eligible for fast-tracked consideration because senators cannot filibuster the motion to proceed to the legislation on the Floor.  Next steps include filing and voting on cloture, which would cut off debate on the legislation and allow for a full Senate vote soon thereafter.  A vote on cloture is expected as soon as Thursday, July 25.

If the Senate ultimately passes the legislation, it would then return to the House, where its prospects are less certain.  House Speaker Mike Johnson (R-La.) reportedly said yesterday that he is “looking forward to reviewing the details of the legislation that comes out of the Senate” and is “committed to working to build consensus in the House.”  However, the House is now scheduled to adjourn one week earlier than expected, beginning tomorrow through September 9, so House consideration of the updated package will not occur until at least then.

Two bills noticeably not announced to be in this legislative package include the EARN IT Act and the STOP CSAM Act, both of which would revise the framework governing the prevention of online sexual exploitation of children.  EARN IT, which has had strong bipartisan support and significant process, may be absent from the package due to controversy as to its impact on Section 230 of the Communications Decency Act.  Both pieces of legislation, however, could technically still be offered as amendments as the full Senate considers the legislative package.

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Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager co-chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and state attorneys general on proposed changes to data protection…

Lindsey Tonsager co-chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and state attorneys general on proposed changes to data protection laws, and regularly represents clients in responding to investigations and enforcement actions involving their privacy and information security practices.

Lindsey’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of artificial intelligence, data processing for connected devices, biometrics, online advertising, endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, e-mail marketing, disclosures of video viewing information, and new technologies.

Lindsey also assesses privacy and data security risks in complex corporate transactions where personal data is a critical asset or data processing risks are otherwise material. In light of a dynamic regulatory environment where new state, federal, and international data protection laws are always on the horizon and enforcement priorities are shifting, she focuses on designing risk-based, global privacy programs for clients that can keep pace with evolving legal requirements and efficiently leverage the clients’ existing privacy policies and practices. She conducts data protection assessments to benchmark against legal requirements and industry trends and proposes practical risk mitigation measures.

Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (D-CA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

Photo of Thea McCullough Thea McCullough

Thea McCullough counsels national and multinational companies across industries as a member of the Data Privacy and Cybersecurity, Litigation, and Public Policy practice groups.

Thea advises clients on a broad range of privacy issues, such as privacy policies and data practices, responses to…

Thea McCullough counsels national and multinational companies across industries as a member of the Data Privacy and Cybersecurity, Litigation, and Public Policy practice groups.

Thea advises clients on a broad range of privacy issues, such as privacy policies and data practices, responses to regulatory inquiries, and compliance obligations under federal and state privacy regulations, including biometric privacy laws. She also represents clients before the Federal Trade Commission in privacy enforcement actions and in consumer protection litigation.

Thea draws on her past experience across all branches of government to inform her practice and to advise clients on public policy matters. Most recently, Thea served as a clerk for the U.S. District Court for the Eastern District of Texas. Prior to beginning her legal career, Thea served as the communications director for the White House National Space Council, where she spearheaded messaging campaigns for Presidential Space Policy Directives and the administration’s civil, commercial, and defense space policy initiatives, and previously as the communications director for the U.S. House Committee on Science, Space, and Technology, where she managed the communications team and developed messaging strategies for policy and legislation covering several issue areas, including cybersecurity, advanced technologies, space, energy, environment, and oversight. She also served as a national spokesperson for President Trump’s 2020 campaign.

Thea is admitted to the DC Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.