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--:-- Kara Swisher: Hi, it's Kara. 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.
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--:-- Nilay Patel: 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. The 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.
--:-- Nilay Patel: You've probably heard of COSPA's predecessor, COSA, the Kids' Online Safety Act. We've been talking about COSA for a while now. And 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.
--:-- Nilay Patel: At a broad level, COPA is supposed to accomplish two big goals, better protecting the privacy of minors online, and making tech platforms more responsible for what those minors 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. Of 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.
--:-- Nilay Patel: 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. It 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.
--:-- Nilay Patel: 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. On 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.
--:-- Nilay Patel: Okay, COSPA and the child safety debate on the internet. Here we go. Lauren Feiner, welcome to Decoder.
--:-- Lauren Feiner: Thanks for having me.
--:-- Nilay Patel: 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?
--:-- Lauren Feiner: COSA is the Kids Online Safety Act. And that's a bill that was introduced by Senators Richard Blumenthal and Marsha Blackburn. It'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. The 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.
--:-- Nilay Patel: There have been a lot of attempts to save the children online. What about these two bills made them the ones that got mashed up and advanced?
--:-- Lauren Feiner: 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. And 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 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. And 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.
--:-- Nilay Patel: There are 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?
--:-- Lauren Feiner: 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. These 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, like 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.
--:-- Nilay Patel: It 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. You would just have to do age verification, right? You have to guarantee that kids couldn't access them.
--:-- Lauren Feiner: 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.
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--:-- Nilay Patel: We're back with Verge senior policy reporter Lauren Feiner. 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?
--:-- Lauren Feiner: 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. I 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 wanted to protect someone else's child.
--:-- Nilay Patel: There were 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?
--:-- Lauren Feiner: 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. And 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.
--:-- Nilay Patel: Was there something specific in a bill that was changed to reduce those concerns, or did they just get over it?
--:-- Lauren Feiner: There 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 gave these groups a little bit more of a sense of ease.
--:-- Nilay Patel: The Senate voted 91-3 in favor of COSPA. We're obviously waiting on what will happen in the House. And 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 I wonder what's going on there?
--:-- Lauren Feiner: I think the reasons that these three voted against the bill are somewhat varied, somewhat overlap. I guess you could say Ron Wyden was concerned with the potential impact on privacy-enhancing technologies like encryption, 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. On 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.
--:-- Nilay Patel: Is there mostly just consensus from everyone else then?
--:-- Lauren Feiner: 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.
--:-- Nilay Patel: 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. Is this going to make it to the House? Is it going to get a vote in the House? What happens next?
--:-- Lauren Feiner: 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. But 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.
--:-- Nilay Patel: 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?
--:-- Lauren Feiner: 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.
--:-- Nilay Patel: Do we know how a potential President Trump or a potential President Harris would respond to this bill?
--:-- Lauren Feiner: 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. So that's the sort of procedural situation. Here's the bill. Here's where it's at. But 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 who 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, and 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.
--:-- Lauren Feiner: 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. But I think the Senate seems pretty convinced that it can overcome those challenges.
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--:-- Nilay Patel: We're back with Verge senior policy reporter Lauren Feiner to discuss how attempts to rein in some forms of harmful speech have run into similar issues when facing the First Amendment. There are other big problems on the platforms right now, particularly as they relate to AI. There's a lot of conversation and heat around the notion that we should regulate deepfakes in some way, particularly intimate deepfakes. You have Google and Microsoft asking for the regulation. You have some bills like the No Fakes Act introduced in Congress. There are other bills. How do those add up? Are they using the same kind of mechanism?
--:-- Lauren Feiner: An interesting bill that we saw recently on the intimate deepfake issue is the Intimate Privacy Protection Act, which basically would create a Section 230 carve-out for intimate AI deepfakes. So essentially that would mean platforms wouldn't be immune for hosting that sort of content. And it's interesting that that bill actually does include the term duty of care, which is the same kind of term we saw in COSA. And you know, maybe that signals that this is something that's popular in Congress right now. Congress is really looking to take kind of a sweeping initiative on kids' safety. They don't want something that's going to be knocked down the next time that a business decides to change how their platform operates. So I think creating some kind of immunity carve-out seems to be another potential way that lawmakers might look at attacking some of these issues.
--:-- Nilay Patel: And then it seems like the other approach is creating a larger intellectual property framework for people's likenesses. That's mostly in state law right now, and the idea that we would have a federal likeness law so somebody clones my face, I could sue them. This has already happened, by the way. That's why I'm laughing. But the idea that we should have a federal law and a federal framework that seems to be the other approach to deepfakes in particular.
--:-- Lauren Feiner: Yeah, I think so. We're still in really early phases of any kinds of AI legislation. And so I think we haven't yet seen all of the ways that that's going to play out. But I think that is definitely likeness is something that lawmakers seem interested in.
--:-- Nilay Patel: The reason I'm asking is it just seems like there's two ways of getting around the First Amendment. One is creating these intellectual property regimes, and the other one is saying, you will be liable if you do a bad thing, and we'll let the users sue you for doing this bad thing, or we'll let people sue you for what your users do. COSPA is right down the center of that, and it's saying, actually, because the welfare of kids is so important, we can just do this directly. And that seems unusual to me.
--:-- Lauren Feiner: I think this gets to a fundamental question of the internet that I think comes up, especially around conversations around 230, which is who is responsible for the harmful content on the internet, whether that's people selling drugs online, AI deepfakes being shared on the internet. Does it come down to the user who created and distributed that content or is it on the platforms themselves? Maybe I think another question here is what is the role of both parents and other technologies that could aid parents in protecting their kids from the existing content on the Internet? What is their role as well? And that's a difficult thing to approach because no one wants to tell parents you have to do more. And it is really hard to stay on top of all of these platforms. But I think that is something that comes up in these conversations is, you know, whose responsibility is it to keep kids safe on the Internet?
--:-- Lauren Feiner: There are some famous carve-outs like FOSTA and SESTA, which said you can't have sex workers on your platform, basically. Did that accomplish anything? That was a really controversial carve-out. And it also was a really popular one in Congress. But there's been, you know, some evidence that that carve-out hasn't even been used that much in the courts. And there's also been a lot of pushback from the sex worker community that believes that that carve-out actually made their work less safe because when they were using online platforms, it was easier to vet clients or know who might be more or less safe or, you know, communicate with other sex workers. There is this idea that maybe a piece of legislation meant to protect one group could cause real harm in another group.
--:-- Nilay Patel: The FOSTA example is an example of unintended consequences. We had this great intention, we passed a law, and it turns out it didn't work and actually might have made a problem significantly worse. There are some similar potential consequences of this bill, and maybe they're actually intended consequences. Marsha Blackburn, who's one of the lead sponsors of the COSA, is out there saying we just don't want our kids exposed to trans material, and this bill will help do that. Is that being taken into account by other people who are supporting the bill and pushing it forward?
--:-- Lauren Feiner: There was a comment that she made kind of early on and during the COSA advocacy, and that was before a lot of the more recent changes to the bill. So I think it's important to add that context there. But certainly, you know, people who oppose this bill and think that it'll be used by politicized enforcers to go after, you know, trans youth content or just to scare platforms into not hosting that kind of content. Certainly, they point to comments like that to say, you know, this is really the intent of the bill. Now, I think the authors of that bill would deny that that is the objective of it. But, you know, I think it is something that you have to consider when we're in a politicized environment.
--:-- Announcer: We need to take another quick break. We'll be right back.
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--:-- Nilay Patel: Let's talk about what happens now. So if the House doesn't take up the bill before the end of the year, will it come up again in the next Congress? It's hard to say. You know, I think in Congress, like, you have to kind of work off of momentum. And this bill has a ton of momentum right now. And, you know, we saw that that helped kind of propel it out of the Senate in this huge way. If it doesn't pass out of the House this year, could it come back? Yeah, I think it could. It has a ton of supporters and it has, you know, a really passionate base of parent advocates who I don't think will just put down the fight if it doesn't go through this year. But that said, you know, Congress has a lot of different priorities. And will this rise to the top once again if it failed to go through the first time? It's hard to say, but I'd say the possibility still remains.
--:-- Lauren Feiner: Both sides seem interested in regulating what happens on the Internet. I would say the conservatives are much more interested in directly regulating the platforms in various ways. If Trump wins or there are more conservatives in the House or Senate, do you think it's more likely or less likely?
--:-- Lauren Feiner: I think this is an issue that really falls outside of the left-right binary. I don't know if it's something that we would see more of or less of under a conservative or liberal administration. I think maybe there would be different approaches, maybe the kinds of policies that surface change a bit. But something like COSPA has received such a huge array of support that I don't know that it's necessarily going to change under one administration or the other. But maybe we'll see tweaks in different ways. Honestly, that makes it seem like the most unusual legislation we've had in years.
--:-- Lauren Feiner: Definitely. I mean, it's not normal to have a bill receive 91 votes in favor of it in the Senate, especially something that, you know, does come with some controversy, some groups that are really strongly standing against it. But, you know, at the same time, I think you're seeing a ton of support outside of Congress for it as well. COSPA has transcended the chaos of Congress.
--:-- Nilay Patel: Do we think it can transcend the chaos of our judicial system? Someone's going to sue, right? It seems inevitable. How do you think the courts are going to handle it?
--:-- Lauren Feiner: Yeah, I would say it seems quite likely that someone would sue to block this law. And I think it's not yet entirely clear how the courts will consider this. I think, you know, certainly the groups that oppose COSPA are probably taking some solace in the fact that NetChoice, which is sued to block several bills throughout the country that deal with kids' online safety or age verification, has successfully received preliminary injunctions in many of those cases on the basis of the First Amendment, which is basically the court saying, you know, we think that on the merits, this case will be decided in favor of NetChoice because we think it will harm the First Amendment in an unacceptable way. Will that be the case with something like COSA? I think it has kind of a different approach than some of the bills that we've seen. And I think, you know, protecting kids' safety on the internet is a compelling interest. It's just, is it something that the courts will say is compelling enough to justify any potential diminishing of free speech on the internet?
--:-- Lauren Feiner: I think it has kind of a different approach than some of the bills that we've seen. And I think, you know, protecting kids' safety on the internet is a compelling interest. It's just, is it something that the courts will say is compelling enough to justify any potential diminishing of free speech on the internet?
--:-- Nilay Patel: What have the big platform companies said? Obviously, NetChoice has an opinion, but have Google or Meta or any other ones said anything?
--:-- Lauren Feiner: We haven't really seen the big tech companies come out with very clear statements on this. You know, NetChoice is opposed, which is funded by many of those big tech companies. We've seen a handful of smaller tech companies come out in support of COSA, like Pinterest, for example. But I think, you know, the platforms that people probably will really be concerned about or want to see how they handle this are, you know, Google with YouTube and Facebook. I'm assuming TikTok as well, if TikTok is still around. Yes, definitely. If it's still around is the key question.
--:-- Nilay Patel: All right. Well, Lauren, I imagine we'll be tracking this for the next year, if not more. We'll have to have you back soon. Awesome. Yes, I'd be happy to be back. Thanks again to Lauren for joining us on the show. I hope you enjoyed it. If you have thoughts about this episode or anything you'd like to hear more of, you can email us at
[email protected]. We really do read all the emails. You can also hit me up directly on Threads. I'm at @reckless. And we have a TikTok for as long as there's a TikTok. Check it out. It's at @decoderpod. It's a lot of fun. If you like Decoder, please share it with your friends. Subscribe wherever you get your podcasts. And if you really like the show, hit us with that five-star review. Decoder is a production of The Verge and part of the Vox Media Podcast Network. Our producers are Kate Cox and Nick Stat. Our editor is Callie Wright. Our supervising producer is Liam James. The Decoder music is by Breakmaster Cylinder. We'll see you next time.
