The American Association for Justice (AAJ) strongly opposes H.R. 7757. This legislation represents a
deeply cynical attempt to provide the technology industry with a cleverly veiled way to comprehensively
gut stronger state policies, under the guise of child safety. By bundling a limited number of non-
controversial research provisions with sweeping giveaways to “Big Tech,” the bill seeks to entice bipartisan
support while simultaneously dismantling the rights of parents, school districts, and states.
The primary mechanism of this bill is to let tech companies define what they are and are not willing
to do to protect kids. For example, the KOSA provision of the bill affirmatively says that platforms owe
NO duty of care, that the only duty tech companies have is to write their own rules and policies (and as
long as they have their own rule, anything that holds them to a different standard is “in conflict” with this
bill and thus preempted), and throughout the entirety of the bill actual knowledge is required for both
regulation and enforcement, so tech platforms can’t be held accountable unless they have actual
knowledge or willfully disregard that a child is on their platforms, while state laws say that tech
platforms can be held accountable if they reasonably should have known that a child was on their
platforms.
Preemption: The proponents of H.R. 7757 will claim that they saved parents’ and school districts’ cases,
and more protective state laws, because they “fixed” the preemption language throughout the bill with a
rule of construction carving out state “trespass, contract, tort, or product liability” law as well as “generally
appliable state consumer protections laws”. This simply does not fix preemption. A rule of construction
does not save stronger state laws or the cases that are based on them because the majority of primary
preemption provisions throughout the bill wipe out state laws that “conflict with” the provisions in
the bill. And many of bill’s titles, including the KOSA title, are written to create so many “conflicts” with
more protective state laws, that a rule of construction can’t save them. The conflict preemption provision
will control to wipe out the cases and the state laws. For example, state laws are based on an assumption
that a duty of care exists; if you knock out the duty of care via conflict preemption, there is no “tort law” to
save—there is no state negligence law if you owe no duty to kids in the first place. Throughout the bill,
actual knowledge is required both for regulation and enforcement, so tech platforms can’t be held
accountable unless they have actual knowledge or willfully disregard that a child is on their platforms, thus
coming into conflict with state laws that say that tech platforms can be held accountable if they reasonably
should have known that a child was on their platforms.
The subsequent analysis addresses H.R. 7757 in its entirety, which serves as a legislative vehicle for several
distinct legislative proposals. Specifically, this bill incorporates the Shielding Children from Related
Extreme Express Net-content (SCREEN) Act, the Kids Online Safety Act (KOSA), the Safe Messaging for
Kids Act, the Stop Profiling Youth (SPY) Kids Act, the Safer Gaming Act, and the Safe Bots Act. Because
these bills have been consolidated into a single legislative vehicle, the following analysis examines the
cumulative impact of the entire package, highlighting how the collective interaction of these provisions,
particularly their overlapping preemption clauses and meaningless “safety” and enforcement standards,
creates an unprecedented shield for the technology industry at the expense of children’s safety.