Kids’ online safety bill faces dim prospects of passage this session despite progress

The landmark kids’ online safety legislation that has perennially struggled in Congress despite garnering strong support appears to once again be in danger of stalling due to a deep divide between the chambers and a short legislative calendar.

The Kids Online Safety Act (KOSA) advanced out of the Senate Commerce Committee last Wednesday, drawing applause from lawmakers, families and advocates who have long fought for the bill. But those same supporters acknowledge a long road ahead for legislation that, despite mounting political pressure to act, many think will be difficult to pass this session.

While certain differences will kill the bill if left unresolved, experts and advocates are still cheering the compromises they have won from lawmakers who have flipped positions and agreed to tougher standards on some issues. s.

However, the two chambers are split on whether to include in the legislation a “duty of care,” a central provision of the Senate bill that legally requires companies to act with reasonable caution to prevent causing foreseeable harm. 

House leaders strongly oppose including such language, which would expose industry to a raft of negligence lawsuits and has been criticized by privacy and civil liberties advocates. Even experts without an official stance on the legislation warn that a duty of care is difficult to make work because it’s challenging to define and to implement parameters for what content is harmful.

Establishing a duty of care for online safety also would require that platforms use highly effective age verification tools, including by collecting government IDs and capturing biometric data. 

Duty of care is “where all the friction has been all these years, and until there's some kind of compromise on that — and at this point everyone's dug in — it's really just difficult to move forward,” said John Perrino, an expert at the Internet Society who has been tracking KOSA for five years and has not taken a position on the legislation.

KOSA opponents argue the bill’s vague duty of care language threatening companies with large fines if they fail to prevent “harms” will cause industry to overcorrect and begin banning educational content about being gay or about how to eat healthily, due to concerns about content promoting eating disorders. Even without an overcorrection, advocates warn the proposed limits violate citizens’ First Amendment right to free speech and will keep people from being able to access important information.

While there’s a possibility the bill, or a version of it, will pass before the end of the session in January, Perrino said it will be “incredibly challenging to make that work.”

‘Incentives for censorship’

KOSA was first introduced in 2022 and a version has been reintroduced every year since. The bill advanced to a vote in the full Senate for the first time last Congress, passing the chamber in a landslide 91-3 vote.

The legislation then died in the House due to strong opposition from leadership, who at the time cited the First Amendment concerns. In a December 2024 interview, House Speaker Mike Johnson told a reporter lawmakers have to be sure that passing KOSA with a duty of care doesn’t “open the door for violations of free speech.”

Around the same time, Johnson also reportedly told journalists the legislation was “overbroad” and could “go too far.”

KOSA will allow the government to “create incentives for censorship,” Kate Ruane, director of the Free Expression Project at the Center for Democracy and Technology, told Recorded Future News.

Then there are those on the other side who say removing duty of care would neuter the law. Sen. Marsha Blackburn (R-TN), who has led the effort to pass KOSA with a duty of care provision included, said House leaders’ position in opposition will be a dealbreaker if they don’t pivot. The House passed its version of KOSA, without a duty of care, as part of a larger package of bills in June.

“The Senate cannot and will not accept the version that the House passed earlier,” Blackburn said at the Wednesday markup. “It is toothless, and it is a very pale imitation of the Senate version, and therefore it is a pale imitation of big tech accountability.” 

The bill’s fate rests in the hands of Majority Leader John Thune (R-SD), who will now decide whether to convene a full Senate roll-call vote amid many competing priorities.

It is unlikely the bill would pass by voice vote, and Thune may want to avoid the time-consuming cloture process, making it possible the leader won’t call a vote, according to Josh Withrow, a resident fellow at the R Street Institute who opposes a duty of care provision.

“Given the very few remaining days on the calendar this year before the election, even getting the bill passed through the whole Senate again this year is a little bit of a struggle, much less reaching an agreement with the House,” he said.

The fact that House leadership is ready to defy a growing popular uprising against big tech over the inclusion of a duty of care  — and take the resulting political hit — underscores how extreme and potentially unconstitutional the provision is, Withrow said.

Gaining momentum

While it does not seem likely that KOSA will make it through Congress before the midterms, it is possible the bill could get traction during the lame duck session between November and January. The political calculus could change after an election cycle that is expected to lean heavily Democratic, said the Free Expression Project’s Ruane.

According to Josh Golin, executive director of the child advocacy group Fairplay, kids’ online safety advocates are pleased with the progress they have made this session even if final passage is in doubt.

One major roadblock was a provision that would have preempted state-level kids’ online safety laws. It was removed from the House version of the bill in June following intense bipartisan negotiations in the chamber’s Energy and Commerce committee. The parents of children who have died due to bullying, sextortion and the promotion of eating disorders on social media played a pivotal role in the negotiations.

“Preemption was a huge difference between the House and the Senate,” Golin said. “That got resolved. … That gives you hope that the duty of care can be worked out.”

Congress also reached a compromise on the so-called knowledge standard for the first time in this session, he said. 

A knowledge standard refers to what a defendant is thinking while acting and is used to determine how much legal liability they face based on their knowledge of their actions.

After long pushing an “actual” knowledge standard — which Golin said has allowed platforms to illegally collect data belonging to kids under 13 simply because they self-report as older — House lawmakers have agreed to a tougher “constructive knowledge” standard, which deems platforms responsible for what they should know, not just what they actually know.

Inching closer

All sides agree that potential inclusion of a kids’ online safety duty of care provision is a thornier dispute and will therefore be harder to resolve.

“There's a lot of uncertainty,” Internet Society’s Scott Perrino said. “The challenge of the duty of care is who's determining what's reasonable and what's not? That can, of course, change from administration to administration.”

But the public is increasingly angry and wants big tech reigned in so lawmakers are feeling intense pressure, Golin said. He remains hopeful that a version of the bill with a duty of care will ultimately pass, even if not this session. 

“There are tremendous hurdles,” he said. “But I do think if we pass out of the Senate, it will be the first time that both the House and the Senate have passed a version of KOSA and their versions have moved closer to each other than they were a year ago.” 

“There are some key fundamental differences that need to be resolved, and it is possible those cannot be resolved, but we are certainly closer than we have ever been before.”

Maurine Molak, a mother whose 16-year-old son David killed himself due to cyber bullying on social media platforms, has been deeply involved in the Congressional negotiations over KOSA for four years and echoed Golin’s optimism.

She co-founded Parents SOS, an advocacy group for grieving parents fighting big tech, and has flown to Washington, D.C. from her home in Texas more than 20 times to meet with lawmakers sculpting the legislation. Her side, she said, has “never been in this good a position.”

“We have worked so hard on this bill for four years,” Molak said. “Me and many of the other parents who have shared the very worst days of our lives with these House members — we are not giving up.”