Senate AI and Kids Safety Package Won’t Justify Preempting State AI Laws

Senate AI and Kids Safety Package Won’t Justify Preempting State AI Laws Press reports indicate that the Senate Commerce Committee is preparing to markup a package of kids’s safety and artificial intelligence legislation on July 29. For months, the White House has been in talks with Republican Senate leaders to strike a deal on kids’ safety and AI bills that would also preempt certain state AI legislation. Yesterday, Senators Cruz and Blackburn met with White House officials, including President Trump, to discuss the package. Reports of the meeting provide little clarity or guidance regarding what may be included in the upcoming markup. However, given legislation currently pending before the Senate and hints in public reporting, the following bills could be on the markup list, each with serious First Amendment, freedom of expression, and privacy issues: - Kids Online Safety Act (KOSA). Concerns raised by the Senate’s version of KOSA are well documented. The duty of care is likely unconstitutional. The bill incentivizes age verification, which endangers privacy and free expression for everyone. And kids in the LGBTQ community, disability community, and other marginalized groups will be disproportionately harmed by the censorship the bill would encourage. - Children’s Health, Advancement, Trust, Boundaries, and Oversight in Technology Act of 2026 or “CHATBOT” Act. While a less restrictive option than the GUARD Act, which would raise far greater privacy and free expression concerns, the CHATBOT Act nonetheless raises constitutional concerns by incentivizing age verification to access generative AI systems without sufficient safeguards to protect privacy and the ability to access these systems free from undue burdens on constitutional rights. It would require minors under 13 to have parent-managed accounts and would make that choice optional for minors who are 13-17. Parent accounts would have the ability to monitor the contents of all minors’ communications with a chatbot, endangering kids’ privacy and free expression rights. - The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act. The NO FAKES Act has been referred to the Judiciary Committee, but has been a part of the conversation around this package since its first reporting and may be included at some point in the process toward passage. It faces strong opposition because it would create a heckler’s veto over lawful expression and entrench the abuses of DMCA notice-and-takedown in vast new areas of speech. Protected satire, parody, commentary, and news would come down first, with speakers vindicated only if they fight back and, because platforms would face steep penalties for guessing wrong on contested constitutional questions, the predictable result would be over-removal and self-censorship. The bill also threatens the very people it hopes to protect, allowing the new likeness right to be licensed and enforced by parties other than the depicted individual and leaving ordinary people and performers with someone else in control of their own face and voice. - App Store Accountability Act. The App Store Accountability Act would require app stores to verify the age categories of their users, using commercially available methods. It would then require parental consent for minors to download any app and parental consent for any significant changes app developers made to their terms of services. Because the App Store Accountability Act requires age assurance for everyone to access constitutionally protected speech, it is likely to face significant constitutional challenges. It further insufficiently protects the privacy of users who will now need to provide additional data to verify their age categories to app stores. It is possible that the Parents Over Platforms Act will be included instead of the App Store Accountability Act. While that bill is preferable to the App Store Accountability Act, it still needs work to ensure it protects privacy and would withstand constitutional challenge. - Children and Teens’ Online Privacy Protection Act or COPPA 2.0. COPPA 2.0 has already passed the Senate but may be included in order to ensure that the bill is part of the package that goes to the floor. COPPA 2.0 would meaningfully enhance privacy protections for minors in many ways, but also may incentivize age verification. In addition to these privacy, free expression, and constitutional concerns, none of the above bills or any other bill likely to be considered by the Committee would sufficiently restrict AI systems’ use of everyone’s data, let alone children’s data, to ensure our privacy is protected or protect against discrimination in the use of AI in housing, employment, credit, education, or healthcare contexts. For those reasons, this package does not justify preemption of state AI protections. This is even more true in light of the House of Representatives’ decision not to preempt any state laws that do not conflict with the provisions of its kids safety package. Protecting kids — including protecting their free expression and privacy rights when they’re using digital technologies — should be a priority as we design our digital future, and there are smart, rights respecting ways to mitigate harms while respecting the Constitution and our rights. Moreover, any provision that includes mandated age verification must also mitigate its risks by including privacy-protective guardrails. How the United States chooses to regulate AI is one of the most critical questions of our time. States are at the forefront of the legislative and policy conversation. Congress should not stifle their work in favor of incomplete and constitutionally problematic legislative packages that create a patchwork of protections at best and erode our privacy and free expression rights at worst.