In his State of the Union address last week, President Biden declared that he wants to: “strengthen privacy protections, ban targeted advertising to children, and demand tech companies stop collecting personal data on our children.”  This statement comes just a couple of weeks after Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) introduced the Kids Online Safety Act.  That legislation, together with the Senate Judiciary Committee’s consideration of the EARN IT Act, a bill aimed at protecting children from online sexual exploitation, gives Congress several options to focus on the internet and child safety—now with the President’s blessing.

The timing of the President’s declaration is important because the number of days available for Congress to take legislative action is shortening as the midterm elections approach.  Though Congress has already held several hearings about online platforms, particularly in the Judiciary Subcommittees with jurisdiction over antitrust, now remains an important time for stakeholders to engage in the discussion.  After the President’s address, the U.S. Senate is almost certainly laying the groundwork for what it would call a larger “tech accountability” package.

The scope of the package Congress may put together is the fundamental question over the next few months.  Both the House and Senate Judiciary Committees have already considered antitrust legislation addressing online platforms, like the American Innovation and Choice Online Act (about platforms preferencing their own products and services) and the Open App Markets Act (about accessibility to app stores).  Those bills, however, are focused on a select few technology companies and narrowly define who qualifies as a “covered platform,” partly based on market share.  The Kids Online Safety Act goes beyond the few companies that would qualify under those other bills and defines a “covered platform” much more broadly, as any “commercial software application or electronic service that connects to the internet and that is used, or reasonably likely to be used, by a minor.”  This definition means the bill would cover a wide range of online services that target a general audience, from news and sports sites, video and music entertainment services, and educational services, to online gaming and social media—regardless of the provider’s market share.

Recent attention to bills like the American Innovation and Choice Online Act, Open App Markets Act, the Kids PRIVCY Act, and Kids Online Safety Act, as well as online child privacy bills at the state level, may also be in reaction to legislation under consideration in the European Union that would affect American technology companies—such as the Digital Markets Act and Digital Services Act, both of which address some of the same issues as the proposed U.S. legislation.  Likely with this concern in mind, Secretary of Commerce Gina Raimondo, in a December speech, said regarding the European legislation:  “[W]e have serious concerns that these proposals will disproportionately impact U.S.-based tech firms and their ability to adequately serve EU customers and uphold security and privacy standards.”  It was later reported in Politico that the White House has been circulating a paper in Brussels opposing certain EU proposals, explaining it “oppose[s] efforts specifically designed to target only U.S. companies where similarly situated non-U.S. companies would not be covered.”

Domestically, however, the Biden Administration is supporting the power of its own regulators to take greater action against the very same companies.  For example, following the Senate Judiciary Committee’s approval of the Open App Markets Act, the White House issued the following statement:  “The United States shares the concerns and policy objectives that the European Union seeks to address.  Even as we engage on concerns we have about distinct elements of the EU’s approach, we are encouraging the bipartisan progress being made in Congress on these issues.”  The White House, which would prefer that U.S. rather than European regulators drive technology regulation, is concerned that a closely divided Congress means that that Europe will act first, and so is urging quick action on the issue.

Despite the recent focus on child protections, however, antitrust legislation will likely still be at the core of any “tech accountability” package that Congress attempts to assemble— though now bills like the EARN IT Act and Kids Online Safety Act might become key parts of that effort.  As discussions are likely ongoing during the remaining days in the Congressional calendar, now is a particularly important time for stakeholders to make their views known on all of these bills.  With momentum building towards legislative action, and more and more negotiations taking place, it will become increasingly difficult to make any substantial changes to whatever is included in an ultimate package.

Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).