Wyden and Paul Maintain Roadblock Against Schumer on Kids’ Bill

Paul told us Schumer is free to bring the measure to the floor, even if its sponsors are “not interested” in addressing his censorship concerns. A Wyden aide said KOSA is “moving in the right direction” after “productive conversations," but Wyden hasn’t lifted his hold.

Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., introduced KOSA, which would impose a duty of care on social media platforms and establish liability when they fail to mitigate harms related to anxiety, depression, suicide, eating disorders, harassment and sexual exploitation. The FTC and state attorneys general would enforce the new law. In addition, minors would be able to opt out of personalized algorithmic feeds. The bill directs the FTC and the FCC to work with the National Institute of Standards and Technology to deliver a report on “technologically feasible” options for online age verification.

The Senate Commerce Committee passed the bill in July 2023 (see 2307270058). House Innovation Subcommittee Chairman Gus Bilirakis, R-Fla., and Rep. Kathy Castor, D-Fla., introduced companion legislation in the lower chamber (see 2404100059).

In a statement Monday, Paul said: “While the bill as written could prevent kids from watching PGA golf or the Super Bowl on social media because of gambling and beer ads, those kids could just turn on the TV and see those exact same ads. I have tried to work with the authors to fix the bill’s many deficiencies. If the authors are not interested in compromise, Senator Schumer can bring the bill to the floor, as he could have done from the beginning.”

Wyden previously raised concerns about the bill incentivizing platforms to censor sensitive topics like reproductive health and LGBTQ issues. He called for the measure's sponsors to clarify that the FTC wouldn't be able to sue for “mere content recommendations,” and that “privacy-preserving features like auto-delete and end-to-end encryption aren't unreasonable or harmful designs.”

Paul and Wyden are the only known holdouts. Blumenthal told us before the break that deliberation over Schumer’s UC effort is “confidential.” He said, “I have an idea [about holdouts], but I don’t know for sure.” Offices for Schumer, Blackburn, Bilirakis and Castor didn’t comment.

A group of KOSA advocates on July 10 spoke with Paul’s general counsel, Trace Mitchell, whose background includes a 2021 stint as policy counsel at NetChoice. It was a “disappointing” call, said Benjamin Bull, National Center on Sexual Exploitation general counsel: “It’s a reasonable bill. We’re at a zeitgeist moment in time. It would be a great tragedy if it did not get a floor vote this session” because of Paul and Wyden.

Given the Senate measure already passed committee, it would be best to move it through the upper chamber and then work for support on the House side, said Eleanor Gaetan, National Center on Sexual Exploitation vice president. Gaetan, along with several others, was on the call with Bull. She expressed optimism about getting Wyden to lift his hold but said Paul’s staff was adamantly opposed on First Amendment grounds.

Paul’s office heard from several families who have lost children to social media-related suicide, including South Carolina state Rep. Brandon Guffey (R). The lawmaker's teenage son took his life in 2022 over sexual extortion threats, which prompted a lawsuit from Guffey against Meta. Guffey said Paul’s stance on the bill makes sense given Mitchell’s tech industry ties. Moreover, Guffey said he’s pursuing legislation in South Carolina that goes further than KOSA. He said his preference would be to repeal Communications Decency Act Section 230. “My life’s passion is to keep kids safe online,” he said. KOSA “should be the simplest of bills to get passed.”

Bull said Paul’s First Amendment objections are unfounded. He and Gaetan argued the bill regulates platform design, not content. Even if the measure is viewed as a content-based regulation, it passes strict First Amendment scrutiny because there’s a “compelling government interest,” and it uses the “least restrictive means” of advancing that interest, he said.

Groups ranging from the Electronic Frontier Foundation and Fight for the Future to the R Street Institute and the Center for Democracy & Technology oppose the legislation. New America’s Open Technology Institute, TechFreedom and Copia Institute joined CDT and nearly a hundred groups in an opposition letter after the bill was introduced. KOSA forces platforms to use “invasive filtering and monitoring tools,” jeopardizes private communication, increases data collection on children and adults, and undermines access to educational materials, they said.