Senators Advance Kids’ Privacy Bills as Bigger Effort Pauses (1)

A Senate panel is playing catch-up with the House as it advances bills aimed at protecting kids’ privacy.

The House Energy and Commerce Committee broke ground last week when it advanced comprehensive privacy legislation (H.R. 8152) after years of gridlock. The bill’s backers weren’t able to get the measure on the floor schedule for this week—the last session days before House lawmakers leave for the August recess—so a vote will likely have to wait until September.

Work on broad privacy legislation hasn’t hit the same momentum in the Senate. Instead, the Commerce, Science, and Transportation Committee approved two bills Wednesday focused only on protecting children’s privacy. Although the more comprehensive measure, the American Data Privacy and Protection Act, also seeks to address safeguards for children, backers of the Senate kids’ bills say their measures deserve to stand on their own.

The leaders of the Senate panel are split over the broader legislation, with ranking member Roger Wicker (R-Miss.) backing the House bill and Chair Maria Cantwell (D-Wash.) pushing her own measure (S. 3195). Cantwell has focused less on her privacy bill because of the time-consuming demands of leading conference negotiations on legislation to boost the US semiconductor industry, but staffers are making progress, her communications director Tricia Enright said.

Kids’ Data

The bills that won the Senate committee’s approval reflect bipartisan interest in protecting children online. Lawmakers cite testimony by Frances Haugen—a former Meta Platforms’ Facebook employee who said big tech companies prioritize profit over the wellbeing of kids and teens online—as well as concerns about how much time children spent online during the pandemic, as impetuses for getting protections passed.

One measure (S. 3663), co-sponsored by Sens. Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), would require tech companies to offer easy-to-use safeguards to control the experience and personal data of minors online. The bill won unanimous support in the committee.

Some Republicans opposed the other measure (S. 1628) from Sens. Ed Markey (D-Mass.) and Bill Cassidy (R-La.) that would update the Children’s Online Privacy Protection Act, or COPPA, to make the collection, use, and disclosure of kids’ data safer. Blumenthal and Markey said their bills are complementary and it would make sense to package them.

The Senate kids’ bills and the broader House Energy and Commerce bill offer similar protections and would require companies to establish a “safety-by design” approach, which entails companies baking privacy protections into their products and practices from the start.

All three bills would place limits on targeted advertisements. Currently, companies are held liable if they have “actual knowledge” the individual being targeted is a minor. Advocates have called that standard a loophole for companies to claim ignorance. Industry groups are concerned a standard of “constructive knowledge” in the House bill and Blumenthal’s bill is overly broad.

Path Forward

Blumenthal said he is expecting the House to introduce companion legislation and predicted his measure would win passage independent of a comprehensive privacy bill. “Protecting kids online is worth separate approval by the entire US Congress,” he said.

Sen. John Thune (R-S.D.) filed an amendment to Blumenthal’s bill that would allow consumers to see information that is filtered out and better understand the “manipulation” of algorithms, but didn’t seek a vote during the markup.

Sen. Amy Klobuchar (D-Minn.) agreed with Thune that the bills under consideration won’t fix algorithm issues, and added competition also is left unaddressed.

Blumenthal’s bill included an amendment by Sen. Deb Fischer (R-Neb.) to ban large online platforms from deceptive user interface designs—such as disguised ads or hidden costs—also known as dark patterns.

Markey, the author of the 1998 COPPA, said “after all these years” he would welcome any legislative vehicle that has a chance of passing both chambers. Sen. Mike Lee (R-Utah) said he opposed Markey’s bill because it gave too much rulemaking authority to the Federal Trade Commission. Markey said work on the language refinements Republicans are seeking continues and there is a pathway to finding solutions.

Wicker, another Republican who opposed Markey’s bill, continues to back the comprehensive House bill. “I am hopeful that this bipartisan bill will soon be sent to the Senate for consideration and my colleagues and I can work together on finally establishing meaningful privacy protections for all Americans,” he said in an email.

But Cantwell’s opposition poses a major hurdle. Finance Chairman Ron Wyden (D-Ore.) has also come out against the measure.

Sen. Brian Schatz (D-Hawaii), a Commerce Committee member, expressed an appetite for passing kids’ privacy legislation if a comprehensive package falls through. “I don’t think we need an omnibus privacy bill even though I have my own,” Schatz said. “I’m happy if we can do the whole thing but if we can’t, then we should try to do bites.”

Children’s privacy advocates are receptive to any path forward that will better protect young people.

“Our hope is that both Senate bills and the ADPPA move through their respective chambers. Either approach—or a combination thereof—would be a huge win for children and families,” said Josh Golin, executive director of Fairplay, a kids’ advocacy group. Golin added he understands the “political realities” of industry pushback. “For us the priority is that we don’t miss this moment,” he said.

Irene Ly, policy counsel for kids advocacy group Common Sense Media, noted that kids’ privacy has broad bipartisan support. “Comprehensive privacy is really important as well, but in the meantime, let’s make sure kids aren’t left out,” she said.

To contact the reporter on this story: Maria Curi in Washington at mcuri@bloombergindustry.com

To contact the editors responsible for this story: Sarah Babbage at sbabbage@bgov.com; Robin Meszoly at rmeszoly@bgov.com; Brandon Lee at blee@bgov.com