On Tuesday, February 14, 2023, the Senate Judiciary Committee held a hearing titled “Protecting Our Children Online.”  The witnesses included only consumer advocates, and no industry representatives.  As Committee Chair, however, Senator Durbin (D-IL) indicated that he plans to hold another hearing featuring representatives from technology companies.

The key takeaway was that there continues to be strong bipartisan support for passing legislation that addresses privacy and online safety for minors.  Both Senator Durbin and Senator Graham (R-SC), the Committee’s Ranking Member, were in agreement that the Committee will mark up relevant legislation, which could happen within the next six months—making the next couple months particularly important for negotiations.  Notably, all of the previously introduced legislation that was discussed had passed at least its respective Senate Committee last Congress.

Senators focused on four bills that could be included as part of a legislative package:

  1. Kids Online Safety Act (KOSA) (to be reintroduced).  KOSA would apply to “covered platforms,” which the previous bill defined as a “commercial software application or electronic service that connects to the internet and that is used, or is reasonably likely to be used, by a minor.”  Among other things, KOSA would impose a duty of care on covered platforms that would require them to “prevent and mitigate the heightened risks of physical, emotional, developmental, or material harms to minors posed by materials” on the platform.
  • EARN IT Act (to be reintroduced).  The EARN IT Act would amend Section 230 of the Communications Decency Act (47 U.S.C. § 230) to limit liability protections of interactive computer service providers against claims alleging violations of child sexual exploitation laws.  It also establishes the “National Commission on Online Child Sexual Exploitation Prevention,” which would develop best practices for interactive computer services providers to prevent, reduce, and respond to online sexual exploitation of children.
  • STOP CSAM Act (introduced).  The STOP CSAM Act would allow victims to ask technology companies to remove child sexual abuse material and related imagery while also creating an administrative penalty for failure to comply with those requests.  The bill would further remove technology companies’ discretion about whether to report a planned or imminent child exploitation offense and require that certain basic information be included in the CyberTipline.
  • Clean Slate for Kids Online Act (reintroduced).  The bill would require that websites covered under the Children’s Online Privacy Protection Act (COPPA; 15 U.S.C. §§ 6501-06) to give notice that a person over 13-years old can request deletion of information that was collected before they turned thirteen.  A person can request deletion even if a parent had previously consented and the deletion request would extend not only to the information the website directly obtained from minors, but also to information that websites obtained from other sources (like data brokers).

Witnesses and Senators mentioned requirements like parental controls, default settings, and audits as tools that could be used to promote online safety for teenagers.  They zeroed in, however, on the importance of holding platforms liable for failure to enforce their own terms, and discussed imposing a duty of care on online platforms.  That theme will likely reoccur as part of the series of hearings that the Committee plans to hold on this issue.     

Photo of Allan Topol Allan Topol

Allan Topol is a resident in the firm’s Washington office.  While practicing law with Covington, he has written ten novels of international intrigue and numerous articles dealing with foreign policy issues in The Huffington Post, The New York Times, The Washington

Allan Topol is a resident in the firm’s Washington office.  While practicing law with Covington, he has written ten novels of international intrigue and numerous articles dealing with foreign policy issues in The Huffington Post, The New York Times, The Washington Post, and Military.com.

Mr. Topol’s law practice has involved extensive civil and criminal litigation, with an emphasis on water, air and major hazardous waste enforcement cases, as well as international environmental law and toxic torts.  He has also advised clients on many of these environmental issues assisting them in dealing with immediate problems as well as developing long term strategies.

Photo of Nicholas Xenakis 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).

Photo of Madeline Salinas Madeline Salinas

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in…

Madeline Salinas counsels national and multinational companies across industries on data privacy, content moderation, and advertising issues.

Madeline advises clients on compliance with federal and state privacy frameworks, and counsels clients on navigating the rapidly evolving legal landscape. She regularly assists clients in designing cutting-edge products and services, developing privacy notices and consent forms, strategically engaging with state legislatures, and participating in rulemaking proceedings of state and federal agencies. In particular, Madeline has experience advising clients on compliance with laws implicating children’s privacy.

Madeline also partners with clients in developing content moderation policies and designing products and services that facilitate sharing of user-generated content, analyzing the evolving legal landscape and public policy considerations related to content moderation.

As part of her practice, Madeline represents clients in consumer protection enforcement actions brought by the Federal Trade Commission on topics related to data privacy and advertising.