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Open to Minor Tweaks

Blackburn’s Office Says Kids’ Privacy Bill Doesn’t Need Major Changes

The Senate Commerce Committee’s bipartisan kids’ privacy legislation doesn’t need any major amendments to pass, but sponsors are open to clarifying language about what companies and ages are covered, said Jamie Susskind, tech policy adviser to Sen. Marsha Blackburn, R-Tenn., Wednesday.

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We’re not open to major changes, but if there are places where we have not been clear because of some drafting issue, then certainly we’re still open” to that, Susskind told a Family Online Safety Institute event. The Senate Commerce Committee passed the Kids Online Safety Act (KOSA) (S-3663) unanimously in July (see 2207270057). Blackburn, the top Republican on the House Consumer Protection Subcommittee, and Chairman Richard Blumenthal, D-Conn., “would like to move this as quickly as possible, recognizing” the broader conversation with data privacy and security, said Susskind. Reached Wednesday, Blackburn deferred questions to her office.

Options for passage include hotlining the bill, moving something during the lame-duck session or attaching it to a legislative package, said Susskind: “I think they’re optimistic, but you just never know when you get in this time of year what's going to happen and where people are going to throw things.” Blackburn is open to narrowing the bill’s duty of care provisions, she said.

There’s concern about the bill enabling state attorneys general to bring action against platforms when state residents are harmed, said Chamber of Progress CEO Adam Kovacevich. The chamber’s members include Amazon, Apple, Google, Meta and Twitter. Leaving it up to individual states to decide what topics pose risk opens the door to the possibility of far-right state AGs waging ideology-driven attacks, he said, citing gender politics: “You can see” state AGs pushing an agenda on a platform, he said.

Susskind disagreed, saying state AGs have done “a lot of good work in this space,” particularly in lawsuits against some of the chamber’s members: “I think we saw an important role for the states to play here.”

The bill poses risks to education technology, said Lauren Merk, Future of Privacy Forum policy counsel-youth and education privacy: For example, many edtech products use algorithms to provide content based on student performance that helps them meet certain benchmarks. Merk asked whether KOSA opt-out provisions linked to algorithmic recommendations interfere with an edtech platform’s ability to provide personalized content. Legislators erred on the side of covering all potential platforms, but they’re open to discussion about avoiding potential interference with edtech platforms, said Susskind: “But we had to make the decision one way or another to carve them out or not, and we made the decision to keep them, knowing we could hear feelings about it.”

Kovacevich agreed with Merk that the Children’s Online Privacy Protection Act needs to be updated, as proposed by Sen. Ed Markey, D-Mass. His COPPA 2.0 bill passed with KOSA. Merk said she likes Markey’s proposal of increasing COPPA’s age threshold from 13 to 17, which would mean protection for all minors. She also spoke highly of the concept of creating a youth privacy marketing division at the FTC. COPPA “fails to grapple honestly” with the ways families allow children to use technology now, said Kovacevich.

Susskind lamented the FTC’s yearslong review of COPPA, which started in 2018. “I’m just not sure what the end goal is with this at this point,” she said, noting the agency’s broader privacy rulemaking is raising a lot of concern about potential scope. The FTC announced the agenda Wednesday for its Oct. 19 event on virtual kids digital advertising. It includes appearances from FTC Chair Lina Khan and officials from YouTube, the Better Business Bureau, Fairplay, Common Sense Media, the Interactive Advertising Bureau and Truth in Advertising.