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It’s been 15 years since suicides overtook homicides as the second leading cause of death for children ages 10 to 14 years old. Two years since the first Meta whistleblower warned United States senators that America’s children are at risk from “disastrous” decisions being made in Silicon Valley. (And a little over a month since a second Meta whistleblower testified, “They knew and they were not acting on it.”) And it’s been roughly one year since a wave of new, younger lawmakers—many raising their own young children—were seated in the House of Representatives. “As a mom of two kids, you know, we want to make sure that their online experience is safe,” Representative Beth Van Duyne, a Texas Republican, tells WIRED.
All those changes—including an alarming doubling of the adolescent suicide rate—and yet, one constant remains: congressional inaction. Amid a flurry of blockbuster whistleblower hearings, soaring campaign promises, tear-soaked press conferences with the families of teens lost to cyberbullying, and dozens of competing bills that members have introduced aimed at protecting kids in cyberspace—nothing.
Congressional inaction has left the door open for the Biden administration to lead on the issue. On Wednesday, the Federal Trade Commission unveiled its proposal for a new set of guidelines to govern social media firms. The FTC wants to prohibit social media companies from identifying children—like targeting their cell numbers—when they’re online, while also limiting which data is collected on students, including having apps not target children under 13 with ads by default. With House Republicans now taking steps to impeach Joe Biden, why would they want to cede their oversight authority over American tech firms to the White House? Most don’t.
With so much interest—and increased pressure from agencies like the FTC—why hasn’t Congress protected kids yet? “I’ve never been able to figure that out either,” Representative Dan Crenshaw, a Texas Republican who sits on the Energy and Commerce Committee, which has jurisdiction on the issue, tells WIRED. Of course, there are theories floating around the marble halls of the US Capitol.
“M–O–N–E–Y”
Teams of tech lobbyists on Capitol Hill have dropped upward of $75 million (not including Q4 totals, which aren’t due until January 22) in 2023. Of the 637 “internet” lobbyists, as money and politics nonprofit Open Secrets dubs the sector, a whopping 73.31 percent are former government employees. Many of these lobbyists are from the same congressional offices and committees now tasked with regulating the internet. They’re not very subtle.
One social media firm or another seems to always be blanketing Washington with a feel-good, policy-focused ad campaign. At the start of the year, TikTok—which, at $3.7 million, spent more in Q3 lobbying this year than it did throughout all of 2019 and 2020 combined—plastered DC’s metro system, historic Union Station, and The Washington Post with ads. When its CEO was dragged in to testify to an angry Congress this spring, it even paid for travel, room, and board for dozens of sympathetic “influencers.” For the past month or so, Meta ads have blanketed the Beltway: “Instagram supports federal legislation that puts parents in charge of teen app downloads,” the ad reads, without saying which measures it’s actively trying to kill on Capitol Hill.
Lawmakers say the ad blitz shows what they’re up against from technology firms. “M–O–N–E–Y,” Senator Josh Hawley, a Missouri Republican, spells out to WIRED. “They’re only in favor of stuff if they can write it.”
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In the last Congress and again this summer, two key kid-focused digital measures both sailed through the Senate Commerce Committee. The Children and Teens’ Online Privacy Protection Act (COPPA 2.0) outlaws targeting children with advertising while also banning data collection on teenage social media users, to name a few of its provisions. The controversial Kids Online Safety Act (KOSA) mandates annual minor-focused risk assessments within social media giants while also giving parents and regulators new tools to protect children.
The two measures enjoy broad support, which is why they get out of committee with ease. But they’ve never been brought to the Senate floor for a vote by all 100 US senators. Critics say many members are supportive in the relatively obscure confines of their committees, but some of that support withers away under the intense lobbying scrutiny that comes once bills make the queue for Senate consideration. So far, members have been shielded, but those days seem to be over. “That’s because, in committee, they know they’re not going to have to vote on it on the floor. I know that for a fact,” Hawley, who’s up for reelection in 2024, says. “I can tell you, I’m going to get much more aggressive come the new year about forcing votes. I think it’s time to start putting people on record.”
The thing is, no one really knows what would happen if COPPA 2.0 or KOSA were voted on. “I don’t have any predictions or any insights,” Senator Roger Wicker, the Mississippi Republican who chaired the Commerce Committee until Democrats reclaimed senatorial power in 2021, tells WIRED. The resistance remains hard to nail down. Republicans blame Democrats. Democrats blame Republicans. Everyone blames the tech industry. “In the legislative process where you’re not bringing something to the floor for debate—which is where you could have a lot of input—then one person can hold something up,” Senator Maria Cantwell, a Democrat who chairs the Senate Commerce Committee, tells WIRED.
Because a broader data privacy bill remains gridlocked to death on Capitol Hill, Congress now has these offshoot measures aimed specifically at children, according to Cantwell. “We want to get a privacy bill, overall,” she says. “That’s what we focused on, because we think that framework gives the biggest protections, including for kids. But we’ve allowed these [children-focused measures] to see if they can make it through so that they wouldn’t have to be part of a larger discussion.”
While Hawley’s convinced Big Money keeps derailing the effort, others disagree. These issues just take time, nuance, and compromise, congressional leaders in both chambers argue. “We keep trying. We need a bipartisan, bicameral consensus, and that’s what we’re trying to do,” Representative Frank Pallone, the top Democrat on the House Energy and Commerce Committee, tells WIRED. “I don’t think it’s any special interest. I think it’s just the fact that it’s hard to get the Senate and the House and the Democrats and Republicans to agree, but we’re trying. I think we’re making progress.”
KOSA Complications
In the last Congress, KOSA—the Kids Online Safety Act—was formally endorsed by 13 Senate cosponsors. That number has more than tripled to 46 cosponsors in this Congress. KOSA cosponsors—Senators Marsha Blackburn, a Republican from Tennessee, and Richard Blumenthal, a Connecticut Democrat—say their personal lobbying of their colleagues is paying off, even if the measure remains stalled. “We’re pushing forward,” Blumenthal tells WIRED. “I’m very hopeful we’ll see a vote early next year. I think we’re feeling it.” Still, while the measure is broadly bipartisan, there’s been a recent wave of opposition to it on the civil libertarian left.
In our post-Roe reality, digital rights and reproductive freedom are now intertwined, and highly suspect. KOSA is now in the crosshairs of groups like the American Civil Liberties Union (ACLU) over free speech and expression concerns. This fall, upward of 100 parents of trans and gender-expansive children penned an open letter opposing KOSA, saying it would “make our kids less safe, not more safe.”
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“It would grant extraordinary new power to right-wing state attorneys general to dictate what content younger users can see on social media, cutting our kids off from lifesaving online resources and community,” the letter, released by digital rights group Fight for The Future, reads. “These are the same attorneys general that are actively working to ban gender-affirming health care that saves kids’ lives, criminalize drag performances, and label families that accept our children as ‘groomers’ and ‘child abusers.’”
The outcry from the progressive end of the spectrum has given those groups new, powerful advocates in Congress. In the end of the year legislative-twister at the Capitol, some KOSA supporters were itching for the proposal to be “fast-tracked,” a unanimous consent agreement where all 100 senators surrender their right to filibuster. But opponents got word and put an end to those efforts. “Until the bill is amended to foreclose the ability of state attorneys general to wage war on important reproductive and LGBTQ content, I will object to any unanimous consent request in relation to this legislation,” Senator Ron Wyden, an Oregon Democrat, told his Senate colleagues in a speech on the Senate floor last month.
KOSA’s sponsors know they still haven’t secured the 60 votes needed for passage, so one alerted party leaders they would oppose their own measure if it were brought up before the New Year. Senate Majority Leader Chuck Schumer’s office didn’t respond to a request for comment on whether he had—or has—plans to bring it to the floor. But Schumer says that before Congress can effectively regulate generative AI—one of his top priorities—America needs a federal data privacy law. “There was pretty much consensus that we need some kind of privacy law,” Schumer told reporters last month. “There are lots of disagreements, but it’s important to try and get that done.”
One Thing After Another
Over in the House, most eyes are on whether freshman speaker Mike Johnson can avert a government shutdown in the New Year. With such a green leader at the helm, House committees are, seemingly, more powerful than before, as members report trying to be the first person to get Johnson’s ear on an array of issues. While there’s no companion measure to KOSA in the House, children’s data privacy remains a top priority for the GOP majority in that chamber. The issue came up as a top priority in the last weekly in-person meeting of the Republican majority on the powerful House Energy and Commerce Committee.
“It’s not dead. It’s a priority for us,” Representative Richard Hudson, a North Carolina Republican, tells WIRED. He’s the current chair of the National Republican Congressional Campaign Committee where he’s tasked with helping the GOP expand its House majority—or, at least, not lose its majority—in 2024. Hudson knows many of his newer members ran on protecting the nation’s children from online predators, legal and illegal ones alike. Now comes the hard work of threading the proverbial needle. “It’s a very difficult question,” Hudson says. “You’re trying to balance rights versus protecting kids, and that’s tough. But our chairwoman is very focused on getting it done.”
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If these children’s data measures are ever debated and voted on, dozens of other more niche privacy protection measures will likely be offered by both party’s rank-and-file lawmakers. Some ideas focus on protecting reproductive and geolocation data from law enforcement, especially in states that have outlawed most abortions. Other measures would strip Section 230 liability protections from sites that, say, host child sexual abuse material or promote the sexual abuse of minors. Another proposal would incentivize, through drastically increased federal fines, tech firms to proactively report any child exploitation efforts they uncover.
There’s more. This year in the Senate, a new bipartisan measure was introduced to outright ban social media for children under 13, while also requiring parental consent until those minors turn 18. Its sponsors include some of the Senate’s most conservative lawmakers—Tom Cotton, an Arkansas Republican, and Katie Britt, an Alabama Republican—and some of the chamber’s most progressive members—Chris Murphy, a Connecticut Democrat, and Brian Schatz, a Hawaii Democrat. Just bringing a measure to protect minors to the floor without ensuring its passage isn’t good enough for Schatz.
“If we can enact it, that would be great, but there’s no sense bringing something to the floor just to make a point,” Schatz, a father of two, tells WIRED.
If party leaders don’t put one or all of these bills on the floor for votes, Hawley, the Republican senator, vows to use all the instruments in his senatorial toolkit to force the issue in 2024.
“I think it’s time to start putting people on record,” Hawley, who authored a measure prohibiting social media accounts for children under age 16, tells WIRED. “Clearly, the leadership’s not going to bring this to the floor. I think that’s pretty clear. So I think we’ve got to get much more aggressive about forcing votes. What I’d really love to do is start trying to attach this to bills where we have roll call votes, because members hate roll call votes. So expect me to get very aggressive about this.”
Hot Air
Congress knows how to grab headlines—making laws is another conversation. This 118th Congress, with a mere 22 bills signed into law, is currently the least productive session witnessed in decades.
While no data privacy votes are scheduled in the new year, a fireworks display is already on the books. Fresh into the start of 2024, senators on the judiciary committee are dragging in five tech CEOs for a made-for-campaign-fodder hearing on children’s privacy issues. Law enforcement was already called in. See, while TikTok CEO Shou Zi Chew and Meta’s Mark Zuckerberg agreed to testify, subpoenas—some hand-delivered by US marshals after Discord and X “refused to cooperate”—were issued for the other three tech titans: X CEO Linda Yaccarino, Snap’s Evan Spiegel, and Discord’s Jason Citron.
“We’ve known from the beginning that our efforts to protect children online would be met with hesitation from Big Tech. They finally are being forced to acknowledge their failures when it comes to protecting kids. Now that all five companies are cooperating, we look forward to hearing from their CEOs,” Senators Dick Durbin, the committee’s Democratic chair, and Lindsey Graham, the committee’s top Republican, released in a joint statement the Monday before Thanksgiving. “Parents and kids demand action.”
Parents and kids are still wondering whether they can count on this Congress for that action. As of now, Congress has shown they can’t.
