If you’ve been following the debate over the Kids Online Safety Act (KOSA) and the KIDS Act that just passed the House, you’ve heard the phrase “duty of care” repeatedly. It’s the central point of contention between the House and Senate versions of the bill. Let’s talk about what this actually means and why it is a huge source of contention.
The Basic Concept
Duty of care is a legal concept that already exists in many areas of law. A doctor has a duty of care to their patient. A driver has a duty of care to other people on the road. An employer has a duty of care to their employees. In each case, the concept means the same thing: a party in a position of responsibility has an obligation to take reasonable steps to avoid causing harm to others.
In the context of KOSA, duty of care would apply that same concept to social media platforms, requiring them to take reasonable steps to prevent specific harms to minors in the design and operation of their services.
What KOSA’s Duty of Care Actually Says
The Senate version of KOSA includes a provision requiring covered platforms to “exercise reasonable care to prevent and mitigate” a defined list of harms to minors. Those harms include anxiety, depression, eating disorders, substance use disorders, compulsive use, and physical violence.
The key word is “reasonable.” Platforms wouldn’t be required to prevent every possible harm, they’d be required to demonstrate that they took reasonable steps in how they designed their products to avoid causing those harms. Think of it like a product liability standard: a car manufacturer doesn’t have to make a car that can never be in an accident, but they do have to design it with reasonable safety features.
The Senate’s standard also uses “actual knowledge or knowledge fairly implied on the basis of objective circumstances” to define when a platform is considered to know a user is a minor , which triggers the duty of care obligations.
What the House Version Does Instead
The House KIDS Act removed the duty of care provision entirely. In its place, platforms must “establish, implement, maintain, and enforce reasonable policies, practices, and procedures” to address a shorter and more specific list of harms…threats of physical violence, sexual exploitation and abuse, drugs, gambling, and financial harms from deceptive practices.
The distinction is significant. The Senate version regulates outcomes; platforms must take reasonable care to prevent harm. The House version regulates process; platforms must have reasonable policies in place. One holds platforms accountable for what happens to children on their services. The other holds platforms accountable for having a written policy about it.
How It Impacts Tech Companies
Under the Senate duty of care standard, platforms face potential liability based on the outcomes their design choices produce. A platform whose algorithmic recommendation engine contributes to a minor’s eating disorder could face legal exposure if a court finds it failed to exercise reasonable care in designing that feature. This creates significant pressure to redesign features like infinite scroll, autoplay, and recommendation algorithms…the features critics argue are most harmful to minors.
Under the House “reasonable policies” standard, platforms face liability based on whether they have and follow documented policies addressing a specific list of harms. A platform that has a policy prohibiting content promoting drug use and enforces it consistently is likely protected, regardless of broader design choices that may contribute to harmful use patterns.
The tech industry generally prefers the House version because process-based standards are easier to satisfy and more predictable in litigation. The Senate version creates open-ended liability exposure that is harder to quantify and defend against.
Why Supporters Insist on Duty of Care
Proponents of the Senate duty of care provision argue that process-based standards are exactly what the tech industry has had for decades, and that documented policies have done nothing to prevent the documented mental health crisis among teenagers. They argue that only outcome-based accountability will force platforms to fundamentally redesign features they know are harmful.
Senators Blackburn and Blumenthal jointly described the House version as “a pale imitation of Big Tech accountability” that “maintains the status quo in which Big Tech uses our kids as profit centers.”
Parent advocacy groups and child safety organizations largely agree, arguing that requiring platforms to have policies is meaningless without requiring those policies to actually work.
Why Opponents Push Back
Critics of the duty of care provision, including many House Republicans and some civil liberties organizations, argue that an open-ended “reasonable care” standard for preventing harms like anxiety and depression gives courts and regulators enormous discretion to second-guess platform design decisions.
The concern is that platforms, facing unpredictable liability exposure, will respond by removing or restricting content aggressively rather than redesigning features, effectively pushing platforms toward censorship of legally protected speech in order to avoid litigation. Speaker Johnson’s objections in the last Congress centered on exactly this concern.
The ACLU’s senior policy counsel noted that even the House version’s narrower standard “could be very much carried out like the Senate’s duty of care” in practice, suggesting the line between the two approaches may be less clear in implementation than it appears on paper.
The Opposition Isn’t One-Sided
It would be easy to assume that opposition to the KIDS Act comes entirely from those who think it goes too far. That assumption is wrong.
A significant portion of the 117 no votes in the House, and the Senate opposition led by Blackburn, Blumenthal, and Cantwell, comes from lawmakers, parent organizations, and child safety advocates who believe the bill doesn’t go far enough. Their objection is not that the KIDS Act overregulates platforms. It is that the House version removed the one provision, duty of care, that would have required platforms to change the design choices most linked to documented harm.
Senator Cantwell said: “We are not going to go with some weak standard. We are going to go with a law that can be enforced and accountability.”
This means the KIDS Act is being opposed simultaneously by members who believe it threatens free speech and by members who believe it gives platforms a free pass. That is not a sign of a workable compromise, it is a sign of a bill that has satisfied neither side of a genuine policy disagreement.
Where Things Stand
The House KIDS Act passed 267-117 on June 29 without duty of care. The Senate’s KOSA, which has not yet passed the Senate, includes it. Blackburn and Blumenthal have pledged to block the House version. Senator Cruz, who chairs the Senate Commerce Committee, has indicated openness to negotiations but has not set a markup timeline.
The gap between the two versions is not a technical drafting difference. It reflects a genuine disagreement about what child safety legislation should actually require of platforms and who bears the burden when a platform’s design choices harm a child.
That debate is not resolved. It is just beginning.
For a deeper analysis of what the full KIDS Act package builds beyond the duty of care debate — including the provisions most members voting on it never read — see CLA’s full analysis here: (51) Just Released: The KIDS Act Will Quietly Reshape the Internet for Every Family