On Tuesday, February 14, 2023, the Senate Judiciary Committee held a hearing titled “Protecting Our Children Online.”  The witnesses included only consumer advocates, and no industry representatives.  As Committee Chair, however, Senator Durbin (D-IL) indicated that he plans to hold another hearing featuring representatives from technology companies.

The key takeaway was that there continues to be strong bipartisan support for passing legislation that addresses privacy and online safety for minors.  Both Senator Durbin and Senator Graham (R-SC), the Committee’s Ranking Member, were in agreement that the Committee will mark up relevant legislation, which could happen within the next six months—making the next couple months particularly important for negotiations.  Notably, all of the previously introduced legislation that was discussed had passed at least its respective Senate Committee last Congress.

Senators focused on four bills that could be included as part of a legislative package:

1. Kids Online Safety Act (KOSA) (to be reintroduced).  KOSA would apply to “covered platforms,” which the previous bill defined as a “commercial software application or electronic service that connects to the internet and that is used, or is reasonably likely to be used, by a minor.”  Among other things, KOSA would impose a duty of care on covered platforms that would require them to “prevent and mitigate the heightened risks of physical, emotional, developmental, or material harms to minors posed by materials” on the platform.

• EARN IT Act (to be reintroduced).  The EARN IT Act would amend Section 230 of the Communications Decency Act (47 U.S.C. § 230) to limit liability protections of interactive computer service providers against claims alleging violations of child sexual exploitation laws.  It also establishes the “National Commission on Online Child Sexual Exploitation Prevention,” which would develop best practices for interactive computer services providers to prevent, reduce, and respond to online sexual exploitation of children.

• STOP CSAM Act (introduced).  The STOP CSAM Act would allow victims to ask technology companies to remove child sexual abuse material and related imagery while also creating an administrative penalty for failure to comply with those requests.  The bill would further remove technology companies’ discretion about whether to report a planned or imminent child exploitation offense and require that certain basic information be included in the CyberTipline.

• Clean Slate for Kids Online Act (reintroduced).  The bill would require that websites covered under the Children’s Online Privacy Protection Act (COPPA; 15 U.S.C. §§ 6501-06) to give notice that a person over 13-years old can request deletion of information that was collected before they turned thirteen.  A person can request deletion even if a parent had previously consented and the deletion request would extend not only to the information the website directly obtained from minors, but also to information that websites obtained from other sources (like data brokers).

Witnesses and Senators mentioned requirements like parental controls, default settings, and audits as tools that could be used to promote online safety for teenagers.  They zeroed in, however, on the importance of holding platforms liable for failure to enforce their own terms, and discussed imposing a duty of care on online platforms.  That theme will likely reoccur as part of the series of hearings that the Committee plans to hold on this issue.