Text of US SB 1409 (2023)

II 118TH CONGRESS 1ST SESSION S. 1409 To protect the safety of children on the internet. IN THE SENATE OF THE UNITED STATES MAY 2, 2023 Mr. BLUMENTHAL (for himself, Mrs. BLACKBURN, Mr. LUJA´N, Mrs. CAPITO, Ms. BALDWIN, Mr. CASSIDY, Ms. KLOBUCHAR, Ms. ERNST, Mr. PETERS, Mr. DAINES, Mr. HICKENLOOPER, Mr. RUBIO, Mr. WARNER, Mr. SUL- LIVAN, Mr. COONS, Mr. YOUNG, Mr. SCHATZ, Mr. GRASSLEY, Mr. MUR- PHY, Mr. GRAHAM, Mr. WELCH, Mr. MARSHALL, Ms. HASSAN, Mrs. HYDE-SMITH, Mr. DURBIN, Mr. MULLIN, Mr. CASEY, Mr. RISCH, Mr. WHITEHOUSE, Mrs. BRITT, Mr. SCOTT of Florida, Ms. LUMMIS, and Mr. CORNYN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To protect the safety of children on the internet. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Kids Online Safety Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Definitions. VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1409 IS Sec. 3. Duty of care. Sec. 4. Safeguards for minors. Sec. 5. Disclosure. Sec. 6. Transparency. Sec. 7. Independent research. Sec. 8. Market research. Sec. 9. Age verification study and report. Sec. 10. Guidance. Sec. 11. Enforcement. Sec. 12. Kids online safety council. Sec. 13. Effective date. Sec. 14. Rules of construction and other matters. Sec. 15. Severability. SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) CHILD.—The term ‘‘child’’ means an indi- 3 vidual who is under the age of 13. 4 (2) COMPULSIVE USAGE.—The term ‘‘compul- 5 sive usage’’ means any response stimulated by exter- 6 nal factors that causes an individual to engage in re- 7 petitive behavior reasonably likely to cause psycho- 8 logical distress, loss of control, anxiety, depression, 9 or harmful stress responses. 10 (3) COVERED PLATFORM.— 11 (A) IN GENERAL.—The term ‘‘covered 12 platform’’ means a social media service, social 13 network, online video game (including edu- 14 cational games), messaging application, video 15 streaming service, or an online platform that 16 connects to the internet and that is used, or is 17 reasonably likely to be used, by a minor. 18 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1409 IS (B) EXCEPTIONS.—The term ‘‘covered 1 platform’’ does not include— 2 (i) an entity acting in its capacity as 3 a provider of— 4 (I) a common carrier service sub- 5 ject to the Communications Act of 6 1934 (47 U.S.C. 151 et seq.) and all 7 Acts amendatory thereof and supple- 8 mentary thereto; 9 (II) a broadband internet access 10 service (as such term is defined for 11 purposes of section 8.1(b) of title 47, 12 Code of Federal Regulations, or any 13 successor regulation); 14 (III) an email service; or 15 (IV) a wireless messaging service 16 provided through the short messaging 17 service or multimedia messaging serv- 18 ice protocols; 19 (ii) an organization not organized to 20 carry on business for its own profit or that 21 of its members; 22 (iii) any public or private preschool, 23 elementary, or secondary school, or any in- 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1409 IS stitution of vocational, professional, or 1 higher education; or 2 (iv) a product or service that pri- 3 marily functions as business-to-business 4 software. 5 (4) MENTAL HEALTH DISORDER.—The term 6 ‘‘mental health disorder’’ has the meaning given the 7 term ‘‘mental disorder’’ in the Diagnostic and Sta- 8 tistical Manual of Mental Health Disorders, 5th Edi- 9 tion (or the most current successor edition). 10 (5) MINOR.—The term ‘‘minor’’ means an indi- 11 vidual who is under the age of 17. 12 (6) ONLINE PLATFORM.—The term ‘‘online 13 platform’’ means any public-facing website, online 14 service, online application, or mobile application that 15 predominantly provides a community forum for user 16 generated content, including sharing videos, images, 17 games, audio files, or other content. 18 (7) PARENT.—The term ‘‘parent’’ includes a 19 legal guardian or an individual with legal custody 20 over a minor. 21 (8) PERSONAL DATA.—The term ‘‘personal 22 data’’ means information that identifies or is linked 23 or reasonably linkable to a particular minor, includ- 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1409 IS ing a consumer device identifier associated with a 1 minor. 2 (9) PERSONALIZED RECOMMENDATION SYS- 3 TEM.—The term ‘‘personalized recommendation sys- 4 tem’’ means a fully or partially automated system 5 used to suggest, promote, or rank information based 6 on the personal data of users. 7 (10) SEXUAL EXPLOITATION AND ABUSE.—The 8 term ‘‘sexual exploitation and abuse’’ means any of 9 the following: 10 (A) Coercion and enticement, as described 11 in section 2422 of title 18, United States Code. 12 (B) Child sexual abuse material, as de- 13 scribed in sections 2251, 2252, 2252A, and 14 2260 of title 18, United States Code. 15 (C) Trafficking for the production of im- 16 ages, as described in section 2251A of title 18, 17 United States Code. 18 (D) Sex trafficking of children, as de- 19 scribed in section 1591 of title 18, United 20 States Code. 21 (11) TARGETED ADVERTISING.— 22 (A) IN GENERAL.—The term ‘‘targeted ad- 23 vertising’’ means displaying an advertisement to 24 an individual where the advertisement is se- 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1409 IS lected based on personal data about the indi- 1 vidual to predict the individual’s preferences 2 and interests. 3 (B) EXCLUSIONS.—Such term does not in- 4 clude— 5 (i) advertising or marketing directed 6 to an individual in response to the individ- 7 ual’s request for information or express se- 8 lection of a product or service; 9 (ii) contextual advertising where an 10 advertisement is displayed to an individual 11 based on the content in which the adver- 12 tisement appears and does not vary based 13 on who the individual is; or 14 (iii) processing personal data solely to 15 measure or report advertising performance, 16 reach, or frequency. 17 SEC. 3. DUTY OF CARE. 18 (a) PREVENTION OF HARM TO MINORS.—A covered 19 platform shall act in the best interests of a user that the 20 platform knows or reasonably should know is a minor by 21 taking reasonable measures in its design and operation of 22 products and services to prevent and mitigate the fol- 23 lowing: 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1409 IS (1) Consistent with evidence-informed medical 1 information, the following mental health disorders: 2 anxiety, depression, eating disorders, substance use 3 disorders, and suicidal behaviors. 4 (2) Patterns of use that indicate or encourage 5 addiction-like behaviors. 6 (3) Physical violence, online bullying, and har- 7 assment of the minor. 8 (4) Sexual exploitation and abuse. 9 (5) Promotion and marketing of narcotic drugs 10 (as defined in section 102 of the Controlled Sub- 11 stances Act (21 U.S.C. 802)), tobacco products, 12 gambling, or alcohol. 13 (6) Predatory, unfair, or deceptive marketing 14 practices, or other financial harms. 15 (b) LIMITATION.—Nothing in subsection (a) shall be 16 construed to require a covered platform to prevent or pre- 17 clude— 18 (1) any minor from deliberately and independ- 19 ently searching for, or specifically requesting, con- 20 tent; or 21 (2) the covered platform or individuals on the 22 platform from providing resources for the prevention 23 or mitigation of suicidal behaviors, substance use, 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1409 IS and other harms, including evidence-informed infor- 1 mation and clinical resources. 2 SEC. 4. SAFEGUARDS FOR MINORS. 3 (a) SAFEGUARDS FOR MINORS.— 4 (1) SAFEGUARDS.—A covered platform shall 5 provide an individual that the covered platform 6 knows or reasonably should know is a minor with 7 readily accessible and easy-to-use safeguards to, as 8 applicable— 9 (A) limit the ability of other individuals to 10 communicate with the minor; 11 (B) prevent other users, whether registered 12 or not, from viewing the minor’s personal data 13 collected by or shared on the covered platform, 14 in particular restricting public access to per- 15 sonal data; 16 (C) limit features that increase, sustain, or 17 extend use of the covered platform by the 18 minor, such as automatic playing of media, re- 19 wards for time spent on the platform, notifica- 20 tions, and other features that result in compul- 21 sive usage of the covered platform by the minor; 22 (D) control personalized recommendation 23 systems, including the right to— 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1409 IS (i) opt out of such personalized rec- 1 ommendation systems, while still allowing 2 the display of content based on a chrono- 3 logical format; or 4 (ii) limit types or categories of rec- 5 ommendations from such systems; and 6 (E) restrict the sharing of the geolocation 7 of the minor and provide notice regarding the 8 tracking of the minor’s geolocation. 9 (2) OPTIONS.—A covered platform shall provide 10 an individual that the covered platform knows or 11 reasonably should know is a minor with readily ac- 12 cessible and easy-to-use options to— 13 (A) delete the minor’s account and delete 14 any personal data collected from, or shared by, 15 the minor on the covered platform; or 16 (B) limit the amount of time spent by the 17 minor on the covered platform. 18 (3) DEFAULT SAFEGUARD SETTINGS FOR MI- 19 NORS.—A covered platform shall provide that, in the 20 case of a user that the platform knows or reasonably 21 should know is a minor, the default setting for any 22 safeguard described under paragraph (1) shall be 23 the option available on the platform that provides 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1409 IS the most protective level of control that is offered by 1 the platform over privacy and safety for that user. 2 (b) PARENTAL TOOLS.— 3 (1) TOOLS.—A covered platform shall provide 4 readily accessible and easy-to-use settings for par- 5 ents to support an individual that the platform 6 knows or reasonably should know is a minor with re- 7 spect to the individual’s use of the platform. 8 (2) REQUIREMENTS.—The parental tools pro- 9 vided by a covered platform shall include— 10 (A) the ability to manage a minor’s privacy 11 and account settings, including the safeguards 12 and options established under subsection (a), in 13 a manner that allows parents to— 14 (i) view the privacy and account set- 15 tings; and 16 (ii) in the case of a user that the plat- 17 form knows or reasonably should know is 18 a child, change and control the privacy and 19 account settings; 20 (B) the ability to restrict purchases and fi- 21 nancial transactions by the minor, where appli- 22 cable; and 23 (C) the ability to view metrics of total time 24 spent on the platform. 25 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1409 IS (3) NOTICE TO MINORS.—A covered platform 1 shall provide clear and conspicuous notice to an indi- 2 vidual that the platform knows or reasonably should 3 know is a minor when tools described in this sub- 4 section are in effect and what settings or controls 5 have been applied. 6 (4) DEFAULT TOOLS.—A covered platform shall 7 provide that, in the case of a user that the platform 8 knows or reasonably should know is a child, the tools 9 described in this subsection shall be enabled by de- 10 fault. 11 (c) REPORTING MECHANISM.— 12 (1) REPORTS SUBMITTED BY PARENTS, MI- 13 NORS, AND SCHOOLS.—A covered platform shall pro- 14 vide— 15 (A) a readily accessible and easy-to-use 16 means to submit reports to the covered plat- 17 form of harms to minors; 18 (B) an electronic point of contact specific 19 to matters involving harms to a minor; and 20 (C) confirmation of the receipt of such a 21 report and a means to track a submitted report. 22 (2) TIMING.—A covered platform shall establish 23 an internal process to receive and substantively re- 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1409 IS spond to reports in a reasonable and timely manner, 1 but in no case later than— 2 (A) 7 days after the receipt of a report, if, 3 for the most recent calendar year, the platform 4 averaged more than 10,000,000 active users on 5 a monthly basis in the United States; 6 (B) 21 days after the receipt of a report, 7 if, for the most recent calendar year, the plat- 8 form averaged less than 10,000,000 active 9 users on a monthly basis in the United States; 10 and 11 (C) notwithstanding subparagraphs (A) 12 and (B), if the report involves an imminent 13 threat to the safety of a minor, as promptly as 14 needed to address the reported threat to safety. 15 (d) ADVERTISING OF ILLEGAL PRODUCTS.—A cov- 16 ered platform shall not facilitate the advertising of nar- 17 cotic drugs (as defined in section 102 of the Controlled 18 Substances Act (21 U.S.C. 802)), tobacco products, gam- 19 bling, or alcohol to an individual that the covered platform 20 knows or reasonably should know is a minor. 21 (e) APPLICATION.— 22 (1) ACCESSIBILITY.—With respect to safe- 23 guards and parental controls described under sub- 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1409 IS sections (a) and (b), a covered platform shall pro- 1 vide— 2 (A) information and control options in a 3 clear and conspicuous manner that takes into 4 consideration the differing ages, capacities, and 5 developmental needs of the minors most likely 6 to access the covered platform and does not en- 7 courage minors or parents to weaken or disable 8 safeguards or parental controls; 9 (B) readily accessible and easy-to-use con- 10 trols to enable or disable safeguards or parental 11 controls, as appropriate; and 12 (C) information and control options in the 13 same language, form, and manner as the cov- 14 ered platform provides the product or service 15 used by minors and their parents. 16 (2) DARK PATTERNS PROHIBITION.—It shall be 17 unlawful for any covered platform to design, modify, 18 or manipulate a user interface of a covered platform 19 with the purpose or substantial effect of subverting 20 or impairing user autonomy, decision-making, or 21 choice in order to weaken or disable safeguards or 22 parental controls required under this section. 23 (3) RULES OF CONSTRUCTION.—Nothing in 24 this section shall be construed to— 25 VerDate Sep 11 2014 03:35 May 11, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 14 •S 1409 IS (A) prevent a covered platform from taking 1 reasonable measures to— 2 (i) block, detect, or prevent the dis- 3 tribution of unlawful, obscene, or other 4 harmful material to minors as described in 5 section 3(a); or 6 (ii) block or filter spam, prevent 7 criminal activity, or protect the security of 8 a platform or service; or 9 (B) require the disclosure of a minor’s 10 browsing behavior, search history, messages, 11 contact list, or other content or metadata of 12 their communications. 13 SEC. 5. DISCLOSURE. 14 (a) NOTICE.— 15 (1) REGISTRATION.—Prior to registration or 16 purchase of a covered platform by an individual that 17 the platform knows or reasonably should know is a 18 minor, the platform shall provide clear, conspicuous, 19 and easy-to-understand— 20 (A) notice of the policies and practices of 21 the covered platform with respect to personal 22 data and safeguards for minors; 23 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 15 •S 1409 IS (B) information about how to access the 1 safeguards and parental tools required under 2 section 4; and 3 (C) notice about whether the covered plat- 4 form, including any personalized recommenda- 5 tion systems used by the platform, pose any 6 heightened risks of harms to minors. 7 (2) PARENTAL NOTIFICATION.— 8 (A) NOTICE AND ACKNOWLEDGMENT.—In 9 the case of an individual that a covered plat- 10 form knows or reasonably should know is a 11 child, the platform shall additionally provide in- 12 formation about the parental tools and safe- 13 guards required under section 4 to a parent of 14 the child and obtain express affirmative ac- 15 knowledgment from the parent prior to the ini- 16 tial use of the covered platform by the child. 17 (B) REASONABLE EFFORT.—A covered 18 platform shall be deemed to have satisfied the 19 requirement described in subparagraph (A) if 20 the covered platform has undertaken a reason- 21 able effort (taking into consideration available 22 technology) to ensure a parent receives the in- 23 formation described in such subparagraph and 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 16 •S 1409 IS to obtain a parent’s express affirmative ac- 1 knowledgment. 2 (3) CONSOLIDATED NOTICES.—A covered plat- 3 form may consolidate the process for providing in- 4 formation and (if applicable) obtaining parental ac- 5 knowledgment as required under this subsection with 6 its obligations to obtain consent for data privacy 7 practices, provided the content of the notice meets 8 the requirements of this subsection. 9 (4) RULEMAKING.—The Federal Trade Com- 10 mission may issue rules pursuant to section 553 of 11 title 5, United States Code, to establish templates or 12 models of short-form notices that include the min- 13 imum level of information and labels necessary for 14 the disclosures required under paragraph (1). 15 (b) PERSONALIZED RECOMMENDATION SYSTEM.—A 16 covered platform that operates personalized recommenda- 17 tion systems shall set out in its terms and conditions, in 18 a clear, conspicuous, and easy-to-understand manner— 19 (1) an overview of how those personalized rec- 20 ommendation systems are used by the covered plat- 21 form to provide information to users of the platform 22 who are minors, including how such systems use the 23 personal data of minors; and 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 17 •S 1409 IS (2) information about options for minors or 1 their parents to control personalized recommenda- 2 tion systems (including by opting out of such sys- 3 tems). 4 (c) ADVERTISING AND MARKETING INFORMATION 5 AND LABELS.— 6 (1) INFORMATION AND LABELS.—A covered 7 platform that facilitates advertising aimed at users 8 that the platform knows or reasonably should know 9 are minors shall provide clear, conspicuous, and 10 easy-to-understand information and labels to minors 11 on advertisements regarding— 12 (A) the name of the product, service, or 13 brand and the subject matter of an advertise- 14 ment; 15 (B) why the minor is being targeted for a 16 particular advertisement if the covered platform 17 engages in targeted advertising, including mate- 18 rial information about how the minor’s personal 19 data was used to target the advertisement; and 20 (C) whether particular media displayed to 21 the minor is an advertisement or marketing ma- 22 terial, including disclosure of endorsements of 23 products, services, or brands made for commer- 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 18 •S 1409 IS cial consideration by other users of the plat- 1 form. 2 (2) RULEMAKING.—The Federal Trade Com- 3 mission may issue rules pursuant to section 553 of 4 title 5, United States Code, to establish templates or 5 models of short-form notices that include the min- 6 imum level of information and labels necessary for 7 the disclosures required under paragraph (1). 8 (d) RESOURCES FOR PARENTS AND MINORS.—A cov- 9 ered platform shall provide to minors and parents clear, 10 conspicuous, easy-to-understand, and comprehensive infor- 11 mation in a prominent location regarding— 12 (1) its policies and practices with respect to 13 personal data and safeguards for minors; and 14 (2) how to access the safeguards and tools re- 15 quired under section 4. 16 (e) RESOURCES IN ADDITIONAL LANGUAGES.—A 17 covered platform shall ensure, to the extent practicable, 18 that the disclosures required by this section are made 19 available in the same language, form, and manner as the 20 covered platform provides any product or service used by 21 minors and their parents. 22 SEC. 6. TRANSPARENCY. 23 (a) IN GENERAL.—Subject to subsection (b), not less 24 frequently than once a year, a covered platform shall issue 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 19 •S 1409 IS a public report identifying the reasonably foreseeable risk 1 of material harms to minors and describing the prevention 2 and mitigation measures taken to address such risk based 3 on an independent, third-party audit conducted through 4 reasonable inspection of the covered platform. 5 (b) SCOPE OF APPLICATION.—The requirements of 6 this section shall apply to a covered platform if— 7 (1) for the most recent calendar year, the plat- 8 form averaged more than 10,000,000 active users on 9 a monthly basis in the United States; and 10 (2) the platform predominantly provides a com- 11 munity forum for user-generated content and discus- 12 sion, including sharing videos, images, games, audio 13 files, discussion in a virtual setting, or other content, 14 such as acting as a social media platform, virtual re- 15 ality environment, or a social network service. 16 (c) CONTENT.— 17 (1) TRANSPARENCY.—The public reports re- 18 quired of a covered platform under this section shall 19 include— 20 (A) an assessment of the extent to which 21 the platform is likely to be accessed by minors; 22 (B) a description of the commercial inter- 23 ests of the covered platform in use by minors; 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 20 •S 1409 IS (C) an accounting, based on the data held 1 by the covered platform, of— 2 (i) the number of individuals using 3 the covered platform reasonably believed to 4 be minors in the United States, 5 disaggregated by the age ranges of 0–5, 6– 6 9, 10–12, and 13–16; and 7 (ii) the median and mean amounts of 8 time spent on the platform by minors in 9 the United States who have accessed the 10 platform during the reporting year on a 11 daily, weekly, and monthly basis, 12 disaggregated by the age ranges of 0–5, 6– 13 9, 10–12, and 13–16; 14 (D) an accounting of total reports received 15 regarding, and the prevalence (which can be 16 based on scientifically valid sampling methods 17 using the content available to the covered plat- 18 form in the normal course of business) of con- 19 tent related to, the harms described in section 20 3(a), disaggregated by category of harm; and 21 (E) a description of any material breaches 22 of parental tools or assurances regarding mi- 23 nors, representations regarding the use of the 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 21 •S 1409 IS personal data of minors, and other matters re- 1 garding non-compliance. 2 (2) SYSTEMIC RISKS ASSESSMENT.—The public 3 reports required of a covered platform under this 4 section shall include— 5 (A) an assessment of the reasonably fore- 6 seeable risk of harms to minors posed by the 7 covered platform, including identifying any 8 other physical, mental, developmental, or finan- 9 cial harms in addition to those described in sec- 10 tion 3(a); 11 (B) an assessment of how recommendation 12 systems and targeted advertising systems can 13 contribute to harms to minors; 14 (C) a description of whether and how the 15 covered platform uses system design features 16 that increase, sustain, or extend use of a prod- 17 uct or service by a minor, such as automatic 18 playing of media, rewards for time spent, and 19 notifications; 20 (D) a description of whether, how, and for 21 what purpose the platform collects or processes 22 categories of personal data that may cause rea- 23 sonably foreseeable risk of harms to minors; 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 22 •S 1409 IS (E) an evaluation of the efficacy of safe- 1 guards for minors under section 4, and any 2 issues in delivering such safeguards and the as- 3 sociated parental tools; and 4 (F) an evaluation of any other relevant 5 matters of public concern over risk of harms to 6 minors. 7 (3) MITIGATION.—The public reports required 8 of a covered platform under this section shall in- 9 clude— 10 (A) a description of the safeguards and pa- 11 rental tools available to minors and parents on 12 the covered platform; 13 (B) a description of interventions by the 14 covered platform when it had or has reason to 15 believe that harms to minors could occur; 16 (C) a description of the prevention and 17 mitigation measures intended to be taken in re- 18 sponse to the known and emerging risks identi- 19 fied in its assessment of system risks, including 20 steps taken to— 21 (i) prevent harms to minors, including 22 adapting or removing system design fea- 23 tures or addressing through parental con- 24 trols; 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 23 •S 1409 IS (ii) provide the most protective level of 1 control over privacy and safety by default; 2 and 3 (iii) adapt recommendation systems to 4 prioritize the best interests of users who 5 are minors, as described in section 3(a); 6 (D) a description of internal processes for 7 handling reports and automated detection 8 mechanisms for harms to minors, including the 9 rate, timeliness, and effectiveness of responses 10 under the requirement of section 4(c); 11 (E) the status of implementing prevention 12 and mitigation measures identified in prior as- 13 sessments; and 14 (F) a description of the additional meas- 15 ures to be taken by the covered platform to ad- 16 dress the circumvention of safeguards for mi- 17 nors and parental tools. 18 (d) REASONABLE INSPECTION.—In conducting an in- 19 spection of the systemic risks of harm to minors under 20 this section, an independent, third-party auditor shall— 21 (1) take into consideration the function of rec- 22 ommendation systems; 23 (2) consult parents and youth experts, including 24 youth and families with relevant past or current ex- 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 24 •S 1409 IS perience, public health and mental health nonprofit 1 organizations, health and development organizations, 2 and civil society with respect to the prevention of 3 harms to minors; 4 (3) conduct research based on experiences of 5 minors that use the covered platform, including re- 6 ports under section 4(c) and information provided by 7 law enforcement; 8 (4) take account of research, including research 9 regarding system design features, marketing, or 10 product integrity, industry best practices, or outside 11 research; and 12 (5) consider indicia or inferences of age of 13 users, in addition to any self-declared information 14 about the age of individuals. 15 (e) COOPERATION WITH INDEPENDENT, THIRD- 16 PARTY AUDIT.—To facilitate the report required by sub- 17 section (c), a covered platform shall— 18 (1) provide or otherwise make available to the 19 independent third-party conducting the audit all in- 20 formation and material in its possession, custody, or 21 control that is relevant to the audit; 22 (2) provide or otherwise make available to the 23 independent third-party conducting the audit access 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 25 •S 1409 IS to all network, systems, and assets relevant to the 1 audit; and 2 (3) disclose all relevant facts to the independent 3 third-party conducting the audit, and not misrepre- 4 sent in any manner, expressly or by implication, any 5 relevant fact. 6 (f) PRIVACY SAFEGUARDS.— 7 (1) In issuing the public reports required under 8 this section, a covered platform shall take steps to 9 safeguard the privacy of its users, including ensur- 10 ing that data is presented in a de-identified, aggre- 11 gated format such that it is reasonably impossible 12 for the data to be linked back to any individual user. 13 (2) This section shall not be construed to re- 14 quire the disclosure of information that will lead to 15 material vulnerabilities for the privacy of users or 16 the security of a covered platform’s service or create 17 a significant risk of the violation of Federal or State 18 law. 19 (g) LOCATION.—The public reports required under 20 this section should be posted by a covered platform on an 21 easy to find location on a publicly available website. 22 SEC. 7. INDEPENDENT RESEARCH. 23 (a) DEFINITIONS.—In this section: 24 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 26 •S 1409 IS (1) ASSISTANT SECRETARY.—The term ‘‘Assist- 1 ant Secretary’’ means the Assistant Secretary of 2 Commerce for Communications and Information. 3 (2) DE-IDENTIFIED DATA.—The term ‘‘de-iden- 4 tified data’’ means information— 5 (A) that does not identify and is not linked 6 or reasonably linkable to an individual or an in- 7 dividual’s device; and 8 (B) with respect to which a covered plat- 9 form or researcher takes reasonable technical 10 and contractual measures to ensure that the in- 11 formation is not used to re-identify any indi- 12 vidual or individual’s device. 13 (3) ELIGIBLE RESEARCHER.— 14 (A) IN GENERAL.—The term ‘‘eligible re- 15 searcher’’ means an individual or group of indi- 16 viduals affiliated with or employed by— 17 (i) an institution of higher education 18 (as defined in section 101 of the Higher 19 Education Act of 1965 (20 U.S.C. 1001)); 20 or 21 (ii) a nonprofit organization described 22 in section 501(c)(3) of the Internal Rev- 23 enue Code of 1986. 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 27 •S 1409 IS (B) LIMITATION.—Such term shall not in- 1 clude an individual or group of individuals that 2 is— 3 (i) not located in the United States; 4 or 5 (ii) affiliated with the government of a 6 foreign adversary (as defined in section 7 8(c)(2) of the Secure and Trusted Commu- 8 nications Networks Act of 2019 (47 U.S.C. 9 1607(c)(2))). 10 (4) INDEPENDENT RESEARCH.—The term 11 ‘‘independent research’’ means the scientific or his- 12 torical analysis of information that is performed for 13 the primary purpose of advancing understanding, 14 knowledge, and remedies regarding the harms to mi- 15 nors described in section 3(a). 16 (5) NONCOMMERCIAL PURPOSE.—The term 17 ‘‘noncommercial purpose’’ means a purpose that 18 does not involve any direct or indirect use of data 19 sets for the sale, resale, solicitation, rental, or lease 20 of a service, or any use by which the user expects 21 a profit, including the sale to the general public of 22 a publication containing independent research. 23 (6) PROGRAM.—The term ‘‘Program’’ means 24 the program established under subsection (b)(1). 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 28 •S 1409 IS (7) QUALIFIED RESEARCHER.—The term 1 ‘‘qualified researcher’’ means an eligible researcher 2 who is approved by the Assistant Secretary to con- 3 duct independent research regarding harms to mi- 4 nors under the Program. 5 (b) INDEPENDENT RESEARCH PROGRAM RELATING 6 TO IDENTIFIED HARMS TO MINORS.— 7 (1) ESTABLISHMENT.—Subject to paragraph 8 (2), the Assistant Secretary shall establish a pro- 9 gram, with public notice and an opportunity to com- 10 ment, under which an eligible researcher may apply 11 for, and a covered platform shall provide, access to 12 data sets from the covered platform for the sole pur- 13 pose of conducting independent research regarding 14 the harms described in section 3(a). 15 (2) SCOPE OF APPLICATION.—The require- 16 ments of this subsection shall apply to a covered 17 platform if— 18 (A) for the most recent calendar year, the 19 platform averaged more than 10,000,000 active 20 users on a monthly basis in the United States; 21 and 22 (B) the platform predominantly provides a 23 community forum for user generated content 24 and discussion, including sharing videos, im- 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 29 •S 1409 IS ages, games, audio files, discussion in a virtual 1 setting, or other content, such as acting as a 2 social media platform, virtual reality environ- 3 ment, or social network service. 4 (3) PROCESSES, PROCEDURES, AND STAND- 5 ARDS.—Not later than 1 year after the date of en- 6 actment of this Act, the Assistant Secretary shall es- 7 tablish for the program established under this sub- 8 section— 9 (A) definitions for data sets (related to 10 harms described in section 3(a)) that qualify for 11 disclosure to researchers under the program 12 and standards of access for data sets to be pro- 13 vided under the program; 14 (B) a process by which an eligible re- 15 searcher may submit an application described in 16 paragraph (1); 17 (C) an appeals process for eligible re- 18 searchers to appeal adverse decisions on appli- 19 cations described in paragraph (1) (including a 20 decision to grant an appeal under paragraph 21 (4)(C)); 22 (D) procedures for implementation of the 23 program, including methods for— 24 (i) participation by covered platforms; 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 30 •S 1409 IS (ii) evaluation of researcher proposals 1 for alignment with program objectives and 2 scoping; and 3 (iii) verification by the Assistant Sec- 4 retary of the credentials of eligible re- 5 searchers and processes for the application 6 or disqualification to participate in the pro- 7 gram; 8 (E) standards for privacy, security, and 9 confidentiality required to participate in the 10 program, including rules to ensure that the pri- 11 vacy and safety of users is not infringed by the 12 program; 13 (F) a mechanism to allow individuals to 14 control the use of their personal data under the 15 program, including the ability to opt out of the 16 program; 17 (G) standards for transparency regarding 18 the operation and administration of the pro- 19 gram; and 20 (H) rules to prevent requests for data sets 21 that present financial conflicts of interest, in- 22 cluding efforts by covered platforms to gain a 23 competitive advantage by directly funding data 24 access requests, the use of qualified researcher 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 31 •S 1409 IS status for commercial gain, or efforts by cov- 1 ered platforms to obtain access to intellectual 2 property that is otherwise protected by law. 3 (4) DUTIES AND RIGHTS OF COVERED PLAT- 4 FORMS.— 5 (A) ACCESS TO DATA SETS.— 6 (i) IN GENERAL.—If the Assistant 7 Secretary approves an application under 8 paragraph (1) with respect to a covered 9 platform, the covered platform shall, in a 10 timely manner, provide the qualified re- 11 searcher with access to data sets necessary 12 to conduct independent research described 13 in that paragraph. 14 (ii) LIMITATIONS.—Nothing in this 15 section shall be construed to require a cov- 16 ered platform to provide access to data 17 sets that are intellectual property protected 18 by Federal law, trade secrets, or commer- 19 cial or financial information. 20 (iii) FORM OF ACCESS.—A covered 21 platform shall provide to a qualified re- 22 searcher access to data sets under clause 23 (i) through online databases, application 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 32 •S 1409 IS programming interfaces, and data files as 1 appropriate. 2 (B) NONDISCLOSURE AGREEMENT.—A 3 covered platform may require, as a condition of 4 access to the data sets of the covered platform, 5 that a qualified researcher enter into a non- 6 disclosure agreement restricting the release of 7 data sets, provided that— 8 (i) the agreement does not restrict the 9 publication or discussion regarding the 10 qualified researcher’s findings; and 11 (ii) the terms of the agreement allow 12 the qualified researcher to provide the 13 original agreement or a copy of the agree- 14 ment to the Assistant Secretary. 15 (C) APPEAL.— 16 (i) AGENCY APPEAL.—A covered plat- 17 form may appeal the granting of an appli- 18 cation under paragraph (1) on the grounds 19 that, and the Assistant Secretary shall 20 grant such appeal if— 21 (I) the covered platform does not 22 have access to the requested data sets 23 or the requested data sets are not rea- 24 sonably tailored to application; or 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 33 •S 1409 IS (II) providing access to the data 1 sets will lead to material 2 vulnerabilities for the privacy of users 3 or the security of the covered plat- 4 form’s service or create a significant 5 risk of the violation of Federal or 6 state law. 7 (ii) JUDICIAL REVIEW.—A decision of 8 the Assistant Secretary with respect to an 9 appeal under clause (i) shall be considered 10 to be a final agency action for purposes of 11 judicial review under chapter 7 of title 5, 12 United States Code. 13 (iii) ALTERNATIVE MEANS OF FUL- 14 FILLMENT.—As part of an appeal under 15 clause (i) that is made on the basis of sub- 16 clause (II) of such clause, a covered plat- 17 form shall propose one or more alternative 18 data sets or means of accessing the re- 19 quested data sets that are appropriate and 20 sufficient to fulfill the purpose of the appli- 21 cation, or shall explain why there are no 22 alternative data sets or means of access 23 which acceptably mitigate the applicable 24 privacy, security, or legal concerns. 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 34 •S 1409 IS (D) TIMING.—A covered platform for 1 which this provision applies shall participate in 2 the program established under this subsection 3 no later than two years after enactment of this 4 Act. 5 (5) APPLICATION REQUIREMENTS.—In order to 6 be approved to access data sets from a covered plat- 7 form, an eligible researcher shall, in the application 8 submitted under paragraph (1)— 9 (A) explain the purpose for which the inde- 10 pendent research is undertaken; 11 (B) commit to conduct the research for 12 noncommercial purposes; 13 (C) demonstrate a proven record of exper- 14 tise on the proposed research topic and related 15 research methodologies; 16 (D) if the eligible researcher is seeking ac- 17 cess to data sets that include personal data, ex- 18 plain why the data sets are requested, and the 19 means through which such data sets shall be 20 accessed are the least sensitive and the most 21 privacy-protective means that will permit com- 22 pletion of the research and not compromise the 23 privacy or safety of users; and 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 35 •S 1409 IS (E) commit to fulfill, and demonstrate a 1 capacity to fulfill, the specific data security and 2 confidentiality requirements corresponding to 3 the application. 4 (6) PRIVACY AND DUTY OF CONFIDEN- 5 TIALITY.— 6 (A) RESEARCHER CONFIDENTIALITY.—To 7 protect user privacy, a qualified researcher shall 8 keep data sets provided by a covered platform 9 under the program confidential and secure to 10 the specifications set forth under the program 11 rules and the approved application. 12 (B) PLATFORM CONFIDENTIALITY.—A cov- 13 ered platform shall use reasonable measures to 14 enable researcher access to data sets under the 15 program in a secure and privacy-protective 16 manner, including through the de-identification 17 of personal data or use of other privacy-enhanc- 18 ing technologies. 19 (C) FEDERAL AGENCIES.—Nothing in this 20 subsection shall be construed to authorize— 21 (i) a Federal agency to seek access to 22 the data of a covered platform through the 23 program; or 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 36 •S 1409 IS (ii) a qualified researcher to transfer 1 or share any data sets provided by a cov- 2 ered platform under the program with a 3 Federal agency. 4 (D) SECURITY.—Nothing in this sub- 5 section shall be construed in a manner that 6 would result in data sets from a covered plat- 7 form being transferred to the Government of 8 the People’s Republic of China or the govern- 9 ment of another foreign adversary (as defined 10 in section 8(c)(2) of the Secure and Trusted 11 Communications Networks Act of 2019 (47 12 U.S.C. 1607(c)(2))). 13 (c) SAFE HARBOR FOR COLLECTION OF DATA FOR 14 INDEPENDENT RESEARCH REGARDING IDENTIFIED 15 HARMS TO MINORS.—If, in the course of conducting inde- 16 pendent research for noncommercial purposes regarding 17 harms described in section 3(a) (without regard to wheth- 18 er such research is conducted under the program), an eli- 19 gible researcher collects or uses data from a covered plat- 20 form in a manner that violates the terms of service of the 21 platform, no cause of action based on such violation shall 22 lie or be maintained in any court against such researcher 23 unless the violation relates to the failure of the researcher 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 37 •S 1409 IS to take reasonable measures to protect user privacy and 1 security. 2 (d) RULEMAKING.—The Assistant Secretary, in con- 3 sultation with the Secretary of Commerce, the Director 4 of the National Institute of Standards and Technology, 5 the Director of the National Science Foundation, and the 6 Director of the National Institutes of Health shall promul- 7 gate rules in accordance with section 553 of title 5, United 8 States Code, as necessary to implement this section. 9 SEC. 8. MARKET RESEARCH. 10 (a) MARKET RESEARCH BY COVERED PLATFORMS.— 11 The Federal Trade Commission, in consultation with the 12 Secretary of Commerce, shall issue guidance for covered 13 platforms seeking to conduct market- and product-focused 14 research on minors. Such guidance shall include— 15 (1) a standard consent form that provides mi- 16 nors and their parents a clear, conspicuous, and 17 easy-to-understand explanation of the scope and pur- 18 pose of the research to be conducted, and provides 19 an opportunity for informed consent; and 20 (2) recommendations for research practices for 21 studies that may include minors, disaggregated by 22 the age ranges of 0–5, 6–9, 10–12, and 13–16. 23 (b) TIMING.—The Federal Trade Commission shall 24 issue such guidance not later than 18 months after the 25 VerDate Sep 11 2014 03:29 May 11, 2023 Jkt 039200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 38 •S 1409 IS date of enactment of this Act. In doing so, they shall seek 1 input from members of the public and the representatives 2 of the Kids Online Safety Council established under sec- 3 tion 12. 4 SEC. 9. AGE VERIFICATION STUDY AND REPORT. 5 (a) STUDY.—The Director of the National Institute 6 of Standards and Technology, in coordination with the 7 Federal Communications Commission, Federal Trade 8 Commission, and the Secretary of Commerce, shall con- 9 duct a study evaluating the most technologically feasible 10 methods and options for developing systems to verify age 11 at the device or operating system level. 12 (b) CONTENTS.—Such study shall consider — 13 (1) the benefits of creating a device or oper- 14 ating system level age verification system; 15 (2) what information may need to be collected 16 to create this type of age verification system; 17 (3) the accuracy of such systems and their im- 18 pact or steps to improve accessibility, including for 19 individuals with disabilities; 20 (4) how such a system or systems could verify 21 age while mitigating risks to user privacy and data 22 security and safeguarding minors’ personal data, 23 emphasizing minimizing the amount of data col- 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 39 •S 1409 IS lected and processed by covered platforms and age 1 verification providers for such a system; and 2 (5) the technical feasibility, including the need 3 for potential hardware and software changes, includ- 4 ing for devices currently in commerce and owned by 5 consumers. 6 (c) REPORT.—Not later than 1 year after the date 7 of enactment of this Act, the agencies described in sub- 8 section (a) shall submit a report containing the results of 9 the study conducted under such subsection to the Com- 10 mittee on Commerce, Science, and Transportation of the 11 Senate and the Committee on Energy and Commerce of 12 the House of Representatives. 13 SEC. 10. GUIDANCE. 14 (a) IN GENERAL.—Not later than 18 months after 15 the date of enactment of this Act, the Federal Trade Com- 16 mission, in consultation with the Kids Online Safety Coun- 17 cil established under section 12, shall issue guidance to— 18 (1) provide information and examples for cov- 19 ered platforms and auditors regarding— 20 (A) identifying features that are used to 21 increase, sustain, or extend use of the covered 22 platform by a minor; 23 (B) safeguarding minors against the pos- 24 sible misuse of parental tools; 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 40 •S 1409 IS (C) best practices in providing minors and 1 parents the most protective level of control over 2 privacy and safety; 3 (D) using indicia or inferences of age of 4 users for assessing use of the covered platform 5 by minors; 6 (E) methods for evaluating the efficacy of 7 safeguards; and 8 (F) providing additional control options 9 that allow parents to address the harms de- 10 scribed in section 3(a); and 11 (2) outline conduct that does not have the pur- 12 pose or substantial effect of subverting or impairing 13 user autonomy, decision-making, or choice, or of 14 causing, increasing, or encouraging compulsive usage 15 for a minor, such as— 16 (A) de minimis user interface changes de- 17 rived from testing consumer preferences, includ- 18 ing different styles, layouts, or text, where such 19 changes are not done with the purpose of weak- 20 ening or disabling safeguards or parental con- 21 trols; 22 (B) algorithms or data outputs outside the 23 control of a covered platform; and 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 41 •S 1409 IS (C) establishing default settings that pro- 1 vide enhanced privacy protection to users or 2 otherwise enhance their autonomy and decision- 3 making ability. 4 (b) GUIDANCE TO SCHOOLS.—Not later than 18 5 months after the date of enactment of this Act, the Sec- 6 retary of Education, in consultation with the Federal 7 Trade Commission and the Kids Online Safety Council es- 8 tablished under section 12, shall issue guidance to assist 9 to assist elementary and secondary schools in using the 10 notice, safeguards and tools provided under this Act and 11 providing information on online safety for students and 12 teachers. 13 (c) LIMITATION ON FEDERAL TRADE COMMISSION 14 GUIDANCE.— 15 (1) EFFECT OF GUIDANCE.—No guidance 16 issued by the Federal Trade Commission with re- 17 spect to this Act shall— 18 (A) confer any rights on any person, State, 19 or locality; or 20 (B) operate to bind the Federal Trade 21 Commission or any person to the approach rec- 22 ommended in such guidance. 23 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 42 •S 1409 IS (2) USE IN ENFORCEMENT ACTIONS.—In any 1 enforcement action brought pursuant to this Act, the 2 Federal Trade Commission— 3 (A) shall allege a violation of a provision of 4 this Act; and 5 (B) may not base such enforcement action 6 on, or execute a consent order based on, prac- 7 tices that are alleged to be inconsistent with 8 guidance issued by the Federal Trade Commis- 9 sion with respect to this Act, unless the prac- 10 tices are alleged to violate a provision of this 11 Act. 12 SEC. 11. ENFORCEMENT. 13 (a) ENFORCEMENT BY FEDERAL TRADE COMMIS- 14 SION.— 15 (1) UNFAIR AND DECEPTIVE ACTS OR PRAC- 16 TICES.—A violation of this Act or a regulation pro- 17 mulgated under this Act shall be treated as a viola- 18 tion of a rule defining an unfair or deceptive act or 19 practice prescribed under section 18(a)(1)(B) of the 20 Federal Trade Commission Act (15 U.S.C. 21 57a(a)(1)(B)). 22 (2) POWERS OF THE COMMISSION.— 23 (A) IN GENERAL.—The Federal Trade 24 Commission (referred to in this section as the 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 43 •S 1409 IS ‘‘Commission’’) shall enforce this Act and any 1 regulation promulgated under this Act in the 2 same manner, by the same means, and with the 3 same jurisdiction, powers, and duties as though 4 all applicable terms and provisions of the Fed- 5 eral Trade Commission Act (15 U.S.C. 41 et 6 seq.) were incorporated into and made a part of 7 this Act. 8 (B) PRIVILEGES AND IMMUNITIES.—Any 9 person that violates this Act or a regulation 10 promulgated under this Act shall be subject to 11 the penalties, and entitled to the privileges and 12 immunities, provided in the Federal Trade 13 Commission Act (15 U.S.C. 41 et seq.). 14 (3) AUTHORITY PRESERVED.—Nothing in this 15 Act shall be construed to limit the authority of the 16 Commission under any other provision of law. 17 (b) ENFORCEMENT BY STATE ATTORNEYS GEN- 18 ERAL.— 19 (1) IN GENERAL.— 20 (A) CIVIL ACTIONS.—In any case in which 21 the attorney general of a State has reason to 22 believe that an interest of the residents of that 23 State has been or is threatened or adversely af- 24 fected by the engagement of any person in a 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 44 •S 1409 IS practice that violates this Act or a regulation 1 promulgated under this Act, the State, as 2 parens patriae, may bring a civil action on be- 3 half of the residents of the State in a district 4 court of the United States or a State court of 5 appropriate jurisdiction to— 6 (i) enjoin that practice; 7 (ii) enforce compliance with this Act 8 or such regulation; 9 (iii) on behalf of residents of the 10 State, obtain damages, restitution, or other 11 compensation, each of which shall be dis- 12 tributed in accordance with State law; or 13 (iv) obtain such other relief as the 14 court may consider to be appropriate. 15 (B) NOTICE.— 16 (i) IN GENERAL.—Before filing an ac- 17 tion under subparagraph (A), the attorney 18 general of the State involved shall provide 19 to the Commission— 20 (I) written notice of that action; 21 and 22 (II) a copy of the complaint for 23 that action. 24 (ii) EXEMPTION.— 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 45 •S 1409 IS (I) IN GENERAL.—Clause (i) 1 shall not apply with respect to the fil- 2 ing of an action by an attorney gen- 3 eral of a State under this paragraph 4 if the attorney general of the State 5 determines that it is not feasible to 6 provide the notice described in that 7 clause before the filing of the action. 8 (II) NOTIFICATION.—In an ac- 9 tion described in subclause (I), the at- 10 torney general of a State shall provide 11 notice and a copy of the complaint to 12 the Commission at the same time as 13 the attorney general files the action. 14 (2) INTERVENTION.— 15 (A) IN GENERAL.—On receiving notice 16 under paragraph (1)(B), the Commission shall 17 have the right to intervene in the action that is 18 the subject of the notice. 19 (B) EFFECT OF INTERVENTION.—If the 20 Commission intervenes in an action under para- 21 graph (1), it shall have the right— 22 (i) to be heard with respect to any 23 matter that arises in that action; and 24 (ii) to file a petition for appeal. 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 46 •S 1409 IS (3) CONSTRUCTION.—For purposes of bringing 1 any civil action under paragraph (1), nothing in this 2 Act shall be construed to prevent an attorney gen- 3 eral of a State from exercising the powers conferred 4 on the attorney general by the laws of that State 5 to— 6 (A) conduct investigations; 7 (B) administer oaths or affirmations; or 8 (C) compel the attendance of witnesses or 9 the production of documentary and other evi- 10 dence. 11 (4) ACTIONS BY THE COMMISSION.—In any 12 case in which an action is instituted by or on behalf 13 of the Commission for violation of this Act or a reg- 14 ulation promulgated under this Act, no State may, 15 during the pendency of that action, institute a sepa- 16 rate action under paragraph (1) against any defend- 17 ant named in the complaint in the action instituted 18 by or on behalf of the Commission for that violation. 19 (5) VENUE; SERVICE OF PROCESS.— 20 (A) VENUE.—Any action brought under 21 paragraph (1) may be brought in— 22 (i) the district court of the United 23 States that meets applicable requirements 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 47 •S 1409 IS relating to venue under section 1391 of 1 title 28, United States Code; or 2 (ii) a State court of competent juris- 3 diction. 4 (B) SERVICE OF PROCESS.—In an action 5 brought under paragraph (1) in a district court 6 of the United States, process may be served 7 wherever defendant— 8 (i) is an inhabitant; or 9 (ii) may be found. 10 SEC. 12. KIDS ONLINE SAFETY COUNCIL. 11 (a) ESTABLISHMENT.—Not later than 180 days after 12 the date of enactment of this Act, the Secretary of Com- 13 merce shall establish and convene the Kids Online Safety 14 Council for the purpose of providing advice on matters re- 15 lated to this Act. 16 (b) PARTICIPATION.—The Kids Online Safety Coun- 17 cil shall include diverse participation from— 18 (1) academic experts, health professionals, and 19 members of civil society with expertise in mental 20 health, substance use disorders, and the prevention 21 of harms to minors; 22 (2) representatives in academia and civil society 23 with specific expertise in privacy and civil liberties; 24 (3) parents and youth representation; 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 48 •S 1409 IS (4) representatives of covered platforms; 1 (5) representatives of the National Tele- 2 communications and Information Administration, 3 the National Institute of Standards and Technology, 4 the Federal Trade Commission, the Department of 5 Justice, and the Department of Health and Human 6 Services; 7 (6) State attorneys general or their designees 8 acting in State or local government; and 9 (7) representatives of communities of socially 10 disadvantaged individuals (as defined in section 8 of 11 the Small Business Act (15 U.S.C. 637)). 12 (c) ACTIVITIES.—The matters to be addressed by the 13 Kids Online Safety Council shall include— 14 (1) identifying emerging or current risks of 15 harms to minors associated with online platforms; 16 (2) recommending measures and methods for 17 assessing, preventing, and mitigating harms to mi- 18 nors online; 19 (3) recommending methods and themes for con- 20 ducting research regarding online harms to minors; 21 and 22 (4) recommending best practices and clear, con- 23 sensus-based technical standards for transparency 24 reports and audits, as required under this Act, in- 25 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 49 •S 1409 IS cluding methods, criteria, and scope to promote 1 overall accountability. 2 SEC. 13. EFFECTIVE DATE. 3 Except as otherwise provided in this Act, this Act 4 shall take effect on the date that is 18 months after the 5 date of enactment of this Act. 6 SEC. 14. RULES OF CONSTRUCTION AND OTHER MATTERS. 7 (a) RELATIONSHIP TO OTHER LAWS.—Nothing in 8 this Act shall be construed to— 9 (1) preempt section 444 of the General Edu- 10 cation Provisions Act (20 U.S.C. 1232g, commonly 11 known as the ‘‘Family Educational Rights and Pri- 12 vacy Act of 1974’’) or other Federal or State laws 13 governing student privacy; 14 (2) preempt the Children’s Online Privacy Pro- 15 tection Act of 1998 (15 U.S.C. 6501 et seq.) or any 16 rule or regulation promulgated under such Act; or 17 (3) authorize any action that would conflict 18 with section 18(h) of the Federal Trade Commission 19 Act (15 U.S.C. 57a(h)). 20 (b) PROTECTIONS FOR PRIVACY.—Nothing in this 21 Act shall be construed to require— 22 (1) the affirmative collection of any personal 23 data with respect to the age of users that a covered 24 VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB 50 •S 1409 IS platform is not already collecting in the normal 1 course of business; or 2 (2) a covered platform to implement an age 3 gating or age verification functionality. 4 (c) COMPLIANCE.—Nothing in this Act shall be con- 5 strued to restrict a covered platform’s ability to— 6 (1) cooperate with law enforcement agencies re- 7 garding activity that the covered platform reasonably 8 and in good faith believes may violate Federal, 9 State, or local laws, rules, or regulations; 10 (2) comply with a civil, criminal, or regulatory 11 inquiry or any investigation, subpoena, or summons 12 by Federal, State, local, or other government au- 13 thorities; or 14 (3) investigate, establish, exercise, respond to, 15 or defend against legal claims. 16 SEC. 15. SEVERABILITY. 17 If any provision of this Act, or an amendment made 18 by this Act, is determined to be unenforceable or invalid, 19 the remaining provisions of this Act and the amendments 20 made by this Act shall not be affected. 21 Æ VerDate Sep 11 2014 23:53 May 10, 2023 Jkt 039200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6301 E:\BILLS\S1409.IS S1409 pbinns on DSKJLVW7X2PROD with $$_JOB