Decoder with Nilay Patel: What's Next for the Controversial 'Child Safety' Internet Bill

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1:04Hi, it's Tara. We're off for the holiday today, but we have an episode for you from Decoder with Nilay Patel. In this episode, Nilay talks to Verge senior policy reporter Lauren Feiner to break down the Kids' Online Safety and Privacy Act, which is controversial and which recently passed in the Senate. Enjoy, and we'll see you Friday. Hello and welcome to Decoder. I'm Nilay Patel, editor-in-chief of The Verge, and Decoder is my show about big ideas and other problems. We've talked a lot on this show about the various attempts to regulate the internet in the United States, and how almost all of them run into the very simple fact that the internet is mostly made up of speech.

1:39The First Amendment prohibits most speech regulations in this country. Literally, it says Congress shall make no law abridging the freedom of speech. That's why we don't have a lot of laws about the internet. But there's a major internet speech regulation currently making its way through Congress right now, and it has a really good chance of becoming law. It's called COSPA, the Kids' Online Safety and Privacy Act, which passed in the Senate late last month with overwhelming bipartisan support. You've probably heard of COSPA's predecessor, COSA, the Kids' Online Safety Act. We've been talking about COSA for a while now.

2:10And in fact, we discussed it here on Decoder earlier this year with Senator Brian Schatz, the Democratic senator from Hawaii who was one of COSA's co-sponsors. That got bundled up with another bill called COPA 2.0, the Children's Online Privacy Protection Act. And that's how you get COSPA. At a broad level, COPA is supposed to accomplish two big goals, better protecting the privacy of miners online, and making tech platforms more responsible for what those miners see and do. The first part, COPA 2.0, is basically a spec bump. The first COPA, passed in 1998, made it so websites and now social media apps can't knowingly have users under the age of 13 on their platforms without their parents' consent.

2:48Of course, that hasn't stopped any kids from using any of these things, and there's been a host of research and experiences with kids on the internet since. So COPPA 2.0 bumps the age limit to 17 and bans things like showing targeted ads to minors. This feels relatively straightforward. It's the second part, the COSA part, that's been controversial for some time. And it remains controversial even as the bill gathers momentum. COSA creates what's called a duty of care for platforms like Meta, Google, TikTok, and others, effectively making them liable for showing harmful content to kids. That's a speech regulation, through and through.

3:23It dictates what the platforms can show and what their users can see. And like every speech regulation, that means COSPA has to get over First Amendment objections. COSPA certainly has opponents who are making First Amendment arguments. But there's a strong argument on the other side that the government's interest in protecting children is enough to overcome those problems, and that the political power of parents being worried about the effects of the internet on their children will push COSPA through. But COSPA is far from a done deal. It hasn't passed the House of Representatives, which is now in recess until September, and House leadership has indicated they may not even consider the bill in its current form.

3:59On top of that, once the bill passes the Senate and the House, it ends up on the President's desk, and we're in the middle of a very contentious presidential election. So there's a lot to talk about, and a lot that might change. To help break it all down, I'm talking to Verge senior policy reporter Lauren Feiner, who's been covering these bills for months now. She's going to help explain what's going on, what these bills actually do, and what the path forward for COSPA looks like. Okay, COSPA and the child safety debate on the internet. Here we go.

4:37Lauren Feiner, welcome to Decoder. Thanks for having me. I would say I'm excited to talk to you, but it's about the First Amendment and regulating speech from the internet. So always dicey, but I think we're going to have fun. My plan is to have fun. Let's start with the bills in Congress right now. There's one called COSA and there's one called COSPA. And they are meant, I think somewhat sincerely, to improve the lives of children on the Internet. What are COSA and COSPA? COSA is the Kids Online Safety Act. And that's a bill that was introduced by Senators Richard Blumenthal and Marsha Blackburn.

5:10It's a bipartisan bill that's received an overwhelming amount of support in the Senate. It's basically a bill that seeks to create a duty of care for online platforms that kids use so that basically the platforms have to be responsible for making their products safe for kids. It's meant to safeguard them from things like eating disorder content or other mental health harms that they could come across on the Internet. So COSPA is basically a mashup of COSA and this other kid safety bill called the Children's Online Privacy Protection Act, COPPA 2.0. They actually added teens into the title this time.

5:51The original bill was meant to protect kids under 13 years of age. This one is under 17. So it includes a greater group of kids in this bill. And it also does some additional things adding on to the existing protections for kids online, like banning targeted advertising to that group. There have been a lot of attempts to save the children online. And what about these two bills made them the ones that got mashed up and advanced? COSA was really taking a different approach than we've seen before and was trying to do something really overarching. And I think that was something that was really attractive to lawmakers who they see something like protecting kids on the Internet.

6:33And that seems like a really politically good issue. So I think COSA, something it did interesting was just create this duty of care for these platforms. So, you know, that's something that even if the platforms change the way that they do business in the next few years or they change something fundamental about their platform, there's still this underlying responsibility, which I think is really attractive to lawmakers who want some sort of lasting way to protect kids on the Internet. And COPPA 2.0, I think, is, you know, a little bit more of an update bill, but something that is maybe easy to get through because everyone wants to protect kids on the internet, wants to protect their privacy.

7:17And I think there's been kind of this updated understanding among lawmakers that maybe we do need to protect a greater swath of kids online than just under 13. There have been a lot of organizations advocating for this bill. We should talk about them for a second. There are a lot of organizations advocating against it. Who are they and what are their specific concerns? The people advocating against this bill are particularly concerned about COSA and the way that it might impact free expression on the internet more broadly. And this is not just for kids. It's for adults as well. But there's also concerns about how kids may or may not have access to potentially really helpful information on the internet.

7:58These are organizations like the Electronic Frontier Foundation, the ACLU, Fight for the Future. And these groups are concerned on the one hand that kids maybe won't be able to access important resources, especially if they're from marginalized groups. You know, trans youth or kids who are in difficult home situations being able to access potentially life-saving or affirming information on the internet if platforms decide to take a really broad, censorious approach to taking content off of their platforms to avoid liability. There's also kind of this greater fear that, you know, the bill doesn't necessarily mandate age verification, but if platforms feel like they have to in some way have a better understanding of how old the people are using their platforms, they might have to implement some ways to do that more that could be privacy invasive or maybe just kind of cleanse the kinds of content that they have on their platforms in general so that it can't be seen as unsafe for kids.

9:05It feels like that argument boils down to if you force the platforms to make the internet safe for kids, they will just make it safe for kids and all the things that adults do will go away. That's definitely a big fear here that, you know, the internet is just going to become kind of this place that is free of these more controversial discussions or more controversial topics that maybe do need to be aired in some kind of capacity to be hashed out. But is that forum going to be the internet moving forward? If it is not the internet, we would just go back to what, like the 1980s? It feels like you could still make platforms on the internet that don't have kids on them to talk about these things.

9:48You would just have to do age verification, right? You have to guarantee that kids couldn't access them. I think it's unclear. We'd have to see how it plays out in the courts, whether you have to really guarantee that kids aren't accessing them or you have to be pretty certain that it's just adults using them. I think that kind of remains to be seen exactly how that might work. But I think that is part of the fear here that it's, you know, we're creating an age gated Internet. And then that fear is basically a First Amendment fear, right? We're going to prevent everyone from speaking because we don't want them to speak to children.

10:20Right, because if you take something like age verification, it's not just that you have kids doing age verification to make sure they're not getting onto sites they shouldn't be. You're having everyone do age verification because how could a website know you're not a kid until you do that? Are there any mechanisms to do age verification that work? From what I've seen, there aren't really any completely foolproof ones. I think there's some that are better than others, and the ones that are better tend to be a little bit more invasive than maybe people are used to at this point in time. And, you know, I think maybe it's something where we see what the standard is that people are okay with shifting in the future.

10:58You know, are you okay with having your face scanned to guess your age if that's something that happens on device and is deleted? or are you okay with a digital ID that just is issued by the government or some central entity and only gives away up or down information about how old you are based on the birth date on that ID? There are solutions out there, but they could be considered more privacy invasive than people are used to. And so I think we're going to see what are people okay with in the kind of reality where these laws exist. And then the other argument is there are a group of children who might be exploring their gender or their sexuality in some way or some other topic that society says is only for adults, and they won't have any access, and they will be blocked off from their communities.

11:46That's a much squishier one, right, than the straightforward, if you make the internet for children, you will be chilling the speech of adults as well. It seems like there's a lot of conversation about what kinds of access children should have to these communities. And there's at least some people who say that access should be protected because it helps those children grow into themselves. I think a lot of people would say there probably is some content that we wouldn't really want kids to access at a certain age. Think about maybe at the most extreme, like pornography. I think most people would say they don't think kids should be accessing porn on the internet.

12:21But, you know, I think we're talking about something different here when it comes to resources that could be actively helpful for some kids. And when we look at that, I think the fear here isn't that the bill says that this information needs to be taken down or it needs to be kept away from kids, because it actually says that if a kid is searching out certain information, the platform is allowed to serve them that. And it says that information that could actually mitigate some of the mental health harms that the bill contemplates, that's okay. But I think the concern here is that the platforms might go a step further than the bill actually prescribes in order to avoid liability, because it could just be such a risk to have something that might be politically charged in this moment, be served to a kid, and then have, you know, a conservative AG or a conservative FTC come after them and say, this is something that we don't think is appropriate for kids.

13:28We need to take a quick break. We'll be right back.

13:59Thank you.

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15:45We're back with Verge senior policy reporter Lauren Fliner. Before the break, we discussed why some critics have expressed concern about COSPA. But there's major bipartisan support for the package, and that momentum is what helped it secure passage in the Senate. So those are the big arguments against COSPA. And it seems like those arguments haven't been really persuasive yet. This bill is moving along. What are the arguments in support of COSPA? And who has really been making those arguments? The arguments in support of COSPA are really that this is a bill that can really fundamentally shift the burden of protecting kids on the internet onto the platforms where kids are spending their time.

16:23I think there's been this sense from a lot of parents that this is just too much to handle. There's so many different platforms. There's so much to keep track of, so many different threats on the internet that maybe kids in the past faced in a certain way, but the scale of this and the speed at which it moves is just so vast. So I think parents have really been looking for ways to protect their kids, something that's more all-encompassing. And I think that's what a lot of parents feel like they found in COSPA. And I think that's why you're seeing parents really leading the charge here. You know, we've seen kind of this persistent group of parents who have, in many cases, lost their children to suicide after cyberbullying or other kinds of harms that they experienced on the internet, really coming out and being the lead voices for this bill and saying, you know, this is something that would have protected my child and that I want it to protect someone else's child.

17:21There are some organizations that had strong opinions against COSA that have seemed to have died down over time. Who are they and what has been done to ameliorate their concerns? There was a prominent group of LGBTQ plus groups, groups like GLAAD, groups like Human Rights Campaign. These groups used to oppose COSA, but they've come out and said, we think after the most recent revision that was earlier this year, that this bill doesn't really put the groups that we are meant to protect in such grave harm. And they didn't go as far as to endorse the bill, but they said, you know, the risks have been mitigated enough that we won't stand in the way of it passing.

18:04And I think that was really significant. These concerns, you know, while maybe they do exist on a certain level, maybe they're somewhat speculative or maybe they wouldn't come to be in the way that some of these groups that are still opposing the bill would fear. That said, I think no one really knows what will happen with these bills until they take effect and until they're challenged in the courts, because, you know, I think no platform is going to say, you know, here's exactly how we're going to comply until they see what the bounds are. And was there something specific in the bill that was changed to reduce those concerns, or did they just get over it?

18:39There were a few different things that were changed, things like limiting the ability of state attorneys general to enforce certain aspects of the bill, like the duty of care, which kind of ameliorated some fears that maybe a particularly conservative or politicized AG might use this against content for trans youth, for example. And then there were things like specifying that this is really talking about like design features and not content. I think those were things that just like gave these groups a little bit more of a sense of ease. The Senate voted 91-3 in favor of COSPA. We're obviously waiting on what will happen in the House.

19:18And it's an interesting vote because it doesn't feel partisan, right? 91, that's a lot. And then the three who voted against it are all over the place. It's Ron Wyden and Rand Paul and Mike Lee. And what's going on there? I think the reasons that these three voted against the bill are somewhat varied, somewhat overlap, I guess you could say. You know, Ron Wyden was concerned with, you know, the potential impact on privacy enhancing technologies like encryption, he said, and anonymity. And he also said he took seriously the concerns from the LGBTQ plus groups that are still concerned that the bill could be used to censor content that could help trans or gay youth.

19:59On the other hand, I think that's not quite the concern for someone like Mike Lee, who worries that the bill is something of an overreach. He worries about how the bill uses a definition of mental health or mental disorders that relies on a psychologist group that he says is politicized. And then Rand Paul is, I think, making a free speech argument that, you know, who's to say what constitutes mental health harms? And, you know, neither side should be happy with how this plays out because, you know, it could be politicized on either end. So you've got the classic, I have some concerns about the law, all the way to we shouldn't have laws from Rand Paul.

20:43Is there mostly just consensus from everyone else then? I think so. I mean, this bill had like 70 co-sponsors. So that's a huge amount. And that was even before it got this vote on the floor of the Senate. So I think there's just this huge appetite to do something to protect kids on the Internet. And there's just been this consensus around this bill that really built consistently over maybe the past year. It's a weird time in American political history, I would say. That feels like an understatement where in a furious sprint of a sort of reshuffled presidential campaign, it doesn't seem like anyone knows what's going on.

21:23Is this going to make it to the House? Is it going to get a vote in the House? What happens next? Now that it's been voted on in the Senate, it's really on the House to figure out what to do next. And I think Speaker Mike Johnson has been open to it. He's seen in public statements. He has said he's kind of vaguely interested in this bill and wants to take a look at it. But I don't think we really know for sure yet. I think the House is kind of a different beast than the Senate. You have so many more voices. You have, you know, a lot of maybe different coalitions that will make up the House that might have more varied feelings on this bill than we saw in the Senate.

22:03But at the same time, when you see something get out of the Senate so overwhelmingly, I think you really have to take it seriously in the House. If the House does vote to pass the bill, is President Biden going to sign it inside of this last little bit of his term? Yeah, Biden is encouraging the House to take up this bill. And he said that he wants the House to send it to his desk and that he would sign it. Do we know how a potential President Trump or a potential President Harris would respond to this bill? I don't know that Trump has spoken specifically on this bill, but we did see Vice President Harris come out in support of COSPA.

22:42So that's the sort of procedural situation. Here's the bill. Here's where it's at. There's a bigger question going on with all of this, which is it feels like everyone thinks it's time to regulate the Internet. We've had several generations of people grew up in the free-floating chaos of the Internet we have now. the issue that has always come up is the internet is mostly speech. The First Amendment is very protective of speech in this country, I think for good reason. And there's not a lot of ways around it. The two ways historically have been copyright law, which works to whatever extent. And then it seems like now the answer is, we're going to say we have to protect the kids.

23:24And that will overcome the strict scrutiny tests that courts apply when it comes to First Amendment issues. Is there a compelling government interest, and does this narrowly achieve that interest? I'm assuming everyone in Congress thinks COSPA narrowly achieves a compelling government interest here. I think that's correct. The Senate seems convinced the interest of America's children is compelling enough to overcome any potential First Amendment issues that this bill might face. And, you know, obviously there's plenty of tech groups and, you know, these other groups like the ACLU that seem to disagree with that.

23:57But I think the Senate seems pretty convinced that it can overcome those challenges. The other mechanisms for regulating speech on the internet don't really come up and face those challenges. Copyright law, we've just decided that Disney's interests overcome the speech interests of a lot of people on the internet. When it comes to other approaches, there's Section 230, which protects the platforms from the actions of their users. And one way you can affect speech regulation on the internet is by making companies like Facebook and Google and TikTok responsible for what their users do. And that's what a Section 230 carve-out is, right?

24:31You're saying Facebook is responsible for a user posting X, and that gets them to moderate X. Is there a way to achieve the goals of COSPA using those other mechanisms? I'm assuming not copy or law, but using something like a Section 230 carve-out? There would be interest from plenty of factions of Congress to use Section 230 in that way. I think the problem we've seen with Section 230 reform is that it's really hard to get even the most strident advocates in favor of Section 230 reform to agree with each other on what that should look like. So I think COSPA kind of got around that issue by creating a new bill that could approach this in a different way that I think was able to rally the kind of political support needed to do that.

25:17That said, yeah, I think in theory, it's possible to carve out, add carve outs to Section 230 or certain kinds of harms. I just think politically that seems like a more difficult path. Are there other approaches to regulating the internet that seem like they might survive First Amendment scrutiny? Will someone think of the children? That seems good. Like they got that one. There's actually the argument that Hawaii Senator Brian Schatz made when we had him on the show back in January. Compelling government interest and all the rest of it, but it's also the public policy argument, which is like, can we please argue about everything else, but agree that an 11-year-old shouldn't have their brainstem melted?