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ADventures in Law

Congress Considers Social Media Safeguards for Children

This week, the U.S. Senate Commerce, Science and Transportation Committee approved a slew of bipartisan bills, including the <a href="https://www.congress.gov/bill/119th-congress/senate-bill/278" target="_blank" rel="noreferrer noopener">Kids Off Social Media Act</a> (KOSMA). The bill was introduced by Chairman Ted Cruz, R-Texas, along with Sens. Brian Schatz, D-Hawaii, Chris Murphy, D-Conn., and Katie Britt, R-Ala. The committee approved the bill by voice vote, but Sen. Ed Markey, D-Mass., asked to be recorded as voting no.

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In case you don’t have time to dig through the nitty-gritty of this bill, we will take a page out of Gen Z’s book and provide you with a quick summary.

TLDR: The bill has two core aims. First, it would prohibit children under the age of 13 from creating or maintaining social media accounts. Second, it would prohibit social media platforms from using personalized recommendation systems on individuals under the age of 17. The bill also includes the Eyes on the Board Act, which would require schools to take good-faith steps to block social media websites on their networks. The Federal Trade Commission (FTC) would enforce the bill and any violation would be treated as a rule violation, allowing for civil penalties. State attorneys general may also bring enforcement actions against social media platforms.

Now, for those of you still eager to learn more about the details of this bill, let’s dive into a few of the key definitions:

Child: “individual under the age of 13”

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Teen: “individual over the age of 12 and under the age of 17”

Personalized recommendation system: “a fully or partially automated system used to suggest, promote, or rank content, including other posts, based on the personal data of users” (“personal data” has the same meaning as “personal information” as defined in the Children’s Online Privacy Protection Act)

Know or knows: “have [or has] actual knowledge or knowledge fairly implied on the basis of objective circumstances”

Social media platform: by far the longest definition in the bill, “a public-facing website, online service, online application, or mobile application that[:] (i) is directed to consumers; (ii) collects personal data; (iii) primarily derives revenue from advertising or the sale of personal data; and (iv) as its primary function provides a community forum for user-generated content, including messages, videos, and audio files among users where such content is primarily intended for viewing, resharing or platform-enabled distributed social endorsement or comment”

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‘No Children Under 13’

The bill states that a social media platform shall not permit an individual under the age of 13 to create or maintain an account or profile if the platform “knows that the individual is a child,” and the bill would require social media platforms to terminate any existing accounts that the social media platforms know belong to a child. This section also governs how social media companies must deal with children’s personal data. Specifically, the bill requires that upon terminating these children’s accounts, the platform must delete all personal data collected or submitted by the users, and the bill provides users, when feasible, the option to request a copy of their data within 90 days.

Personalized Recommendation Systems

This bill would prohibit social media platforms from using the personal data of a user or visitor to display content in a personalized recommendation system if the platform knows that the user is a child or teen (i.e., anyone under the age of 17). There is an exception in the bill, however, that would permit the use of a personalized recommendation system to display content to a child or teen if only the following personal data is used: the device type used by the child/teen, the language used by the child/teen, the city or town where the child/teen is located, the fact that the individual is a child/teen or the age of the child/teen. This section also notes that this will not impact social media platforms from providing search results (when deliberately searched in the search bar). Additionally, the bill would not prohibit a social media platform from displaying user-generated content that has been “selected, followed, or subscribed to by a teen account holder as long as the display of the content is based on a chronological format.”

The bill also sets forth how the determination will be made as to whether a social media platform has knowledge fairly implied on the basis of objective circumstances that a user is a child or teen. Specifically, the bill notes that the FTC or a state attorney general shall rely on “competent and reliable evidence, taking into account the totality of circumstances, including whether a reasonable and prudent person under the circumstances would have known that a user is a child or teen.”

Nothing in the bill should be construed to require social media platforms to implement age-gating or age verification functionality or to “affirmatively collect any personal data with respect to the age of users that the social media platform is not already collecting in the normal course of business.” If a social media platform (or third party acting on its behalf) collects data for the purpose of complying with this law, it is only permitted to use the data for compliance purposes and cannot retain the data any longer than necessary.

KOSMA now proceeds to the full Senate for a vote. The timing for Senate consideration is not yet known, but the Senate is busy with confirming President Donald Trump’s cabinet nominations, budget reconciliation and completing the FY25 federal spending package. In the coming months, the Commerce Committee will consider additional online safety legislation. Sens. Marsha Blackburn, R-Tenn., and Richard Blumenthal, D-Conn., are expected to reintroduce the Kids Online Safety Act (KOSA), a bill the Senate passed 91-3 last year but that did not reach the president’s desk. Late last year, Blackburn and Blumenthal announced they had reached an agreement with Elon Musk to modify KOSA. We’ll keep you posted on both KOSA and KOSMA.

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