Congress’ yearslong struggle to force Big Tech to protect children online is now tangled in the fight over regulating artificial intelligence, adding new obstacles to an elusive legislative deal.
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What was once a battle to take on Google, Apple, Meta, X and TikTok has now expanded to companies such as OpenAI and Anthropic.
Lawmakers who are eager to crack down on social media companies, particularly when it comes to kids’ safety, sound more cautious about overregulating AI while the industry is still developing.
“We must address catastrophic risk without ceding ground to China or restricting Americans’ free expression,” said Texas GOP Sen. Ted Cruz, chairman of the Senate Commerce Committee that has jurisdiction over both issues.
Mr. Cruz’s comment came after President Trump issued an executive order in June that seeks to promote AI innovation while giving companies the ability to harden their systems against national security threats through voluntary collaboration with the government.
The executive order sought to strike a delicate balance of mitigating against the harms of AI without stifling U.S. advancements in the industry.
Lawmakers are weighing similar concerns as they look to place guardrails on AI as part of a legislative package to protect kids online.
The preemption debate stems from a desire to give AI companies some regulatory certainty as they push out innovations.
“There’s been a lot of discussions back and forth trying to resolve the issue of preemption, how you respect states’ rights and still create a uniform standard, so that you don’t have 50 different laws you’re dealing with,” Senate Majority Leader John Thune told The Washington Times.
“That’s the objective of the White House, and a lot of our members,” the South Dakota Republican said. “They continue to work on how to thread that.”
Mr. Thune said the Kids Online Safety Act, or KOSA, a bipartisan bill the Senate passed in a 91-3 vote last Congress, could be “an engine that pulls the AI bill along.”
Sen. Marsha Blackburn, Tennessee Republican and coauthor of KOSA, has been spearheading a negotiation with the White House that would do just that.
The goal, according to a Blackburn spokesperson, is “to finalize legislative text of an AI preemption package that includes protections for kids, creators, and communities through the Senate version of KOSA, the NO FAKES Act, and age verification requirements.“
The NO FAKES Act is a bill to protect against unauthorized digital copies of a person’s voice or likeness amid a rise in AI copycats. The measure, cosponsored by Sen. Chris Coons, Delaware Democrat, and Ms. Blackburn, advanced out of the Senate Judiciary Committee last month.
Sen. Richard Blumenthal, Connecticut Democrat and Ms. Blackburn’s coauthor of KOSA, is opposed to adding AI preemption to the kids-focused legislation.
“Preemption should not be a part of it, period,” he said.
The House went through a similar partisan struggle as it worked on its own kids online safety legislation.
The Energy and Commerce Committee marked up a package in March called the Kids Internet and Digital Safety Act, or KIDS Act, that included a version of KOSA and roughly a dozen other bills, including safeguards for minors interacting with AI chatbots.
Democrats opposed the package in committee in part because it included language to preempt states from enacting or enforcing similar laws.
Energy and Commerce Chairman Brett Guthrie, Kentucky Republican, and ranking member Frank Pallone, New Jersey Democrat, struck a deal on a new version of the KIDS Act that would ensure all states adhere to the federal standards in the bill at a minimum but allow them to regulate beyond that.
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The House passed the bipartisan version on Monday in a 267-117 vote.
Mr. Pallone told The Times that if Ms. Blackburn is planning to modify her bill to preempt states from regulating AI, that would be a “nonstarter.”
“In our bill, we were trying to make sure that it was a floor, not a ceiling,” he said. “Now she wants to preempt AI? That’s terrible.”
Mr. Guthrie, however, welcomed the Senate to go further than the House in that regard.
“The problem is if you have 50 different standards, it’s difficult for companies to operate,” he said at a recent Punchbowl News event.
While Ms. Blackburn is leading negotiations with the White House, it is ultimately up to Mr. Cruz to decide what legislation to advance through his committee.
Mr. Cruz has promised a committee markup this summer on KOSA and a few other kids online safety bills. He has said he wants to include AI bills in the mix, but he has been coy about specifics.
“Legislating in this area is complicated and fraught with peril,” Mr. Cruz said during the Judiciary Committee markup of the NO FAKES Act.
He supported advancing that bill out of committee but said he wanted to see additional free speech protections added before a floor vote.
Mr. Cruz told Politico he was vetting bills for the Commerce Committee markup based on what can get bipartisan support.
“This markup is designed to move legislation that has a real chance of passing into law,” he said.
Washington Sen. Maria Cantwell, the panel’s top Democrat, said, “Nobody on the committee knows what Senator Cruz is proposing.”
She wants to advance the Senate version of KOSA but said: “Certainly we don’t need to tie it to bad AI policy.”
Despite the disagreements over AI preemption, Senators are mostly united that their version of KOSA is better than the House’s because it includes a “duty-of-care” provision.
The duty of care would hold social media companies liable if they do not adhere to the bill’s standards for platform designs that endeavor to prevent harmful online content from reaching children.
House Republicans have widely panned the duty-of-care provision as inviting a court challenge for regulatory overreach that could limit free speech.
“We can’t pass duty of care,” Virginia GOP Rep. Morgan Griffith, an Energy and Commerce panel member, told The Times. “It is seen as being the entryway for a European-style controlling [of] the speech on the internet.”
Disagreements over the duty of care and AI preemption make it difficult to find a compromise on kids’ online safety legislation that will please both parties and both chambers, Mr. Griffith said.
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“But we got to do something, because right now, we got nothing.”
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