More People Realizing KOSA Is A 1st Amendment Nightmare

We've covered the many problems of the Kids Online Safety Act (KOSA) for years now (this is the second Congress it has been introduced in), and it appears that more and more people are realizing the myriad problems with the bill which, ridiculously, has broad bipartisan support, with an astoundingly disappointing 43 cosponsors in the Senate.

It strikes me as bizarre that either party is enthusiastic about supporting this bill, but, as is all too typical, both Democrats and Republicans are excited about the idea that it will be used against speech that they dislike, without any concern for either the 1st Amendment, or how it will be used to suppress speech they actually like.

Again, Republicans have been very upfront and explicit over how they view KOSA as a way to censor LGBTQ+ content. Meanwhile, Democrats falsely believe that it will be a tool to censor bad" content (loosely defined), which they think (incorrectly) will include things like mis- and disinformation.

Thankfully, it appears that more and more people are recognizing the very real, and very serious harms (and constitutional problems) with KOSA.

Over at Ars Technica, Ashely Belanger has a very thorough takedown of all the problems with the bill. In it, Belanger quotes various supporters of the bill claiming (falsely) that they've fixed all the supposed problems with KOSA, and then has critics of the bill point out why that's bullshit.

For example, around the issue of age verification, which the bill claims not to require, but which it will put tremendous pressure on sites to adopt, the article shows the supporters waving away any concerns, and then has the critics highlight where the supporters are just fundamentally incorrect:

KOSA supporters told Ars that the bill specifically does not require platforms to verify ages of users. Josh Golin, executive director at Fairplay-a nonprofit child advocacy organization that helped draft KOSA-told Ars that contrary to KOSA's critics' claims, the legislation does not require content takedowns, age verification, or government IDs to use the Internet."

In response to good-faith criticism of the 2022 version of KOSA, the bill has been considerably improved and, as a result, opposition from civil society has decreased significantly," Golin told Ars. Perhaps that's why the remaining opponents are so desperate to scare people with doomsday scenarios, rather than engaging with the actual text of the bill."

But critics who feel the text is still too broad said that platforms could be more at risk for lawsuits if they don't verify users' ages.

Mullin told Ars that without age verification, it's still unclear what standard that platforms could use to avoid liability. Further, Mullin is concerned that platforms are not being size-gated under KOSA, which means any platform of any size could be liable and thus feel pressured to verify users' ages. Until these points are clarified, Mullin's not sure how KOSA wouldn't lead to a future where the whole Internet is age-gated.

Is it good enough to say, Hey, if you're under 18, don't come here' or Click to confirm you're 18 or over?'" Mullin asked. Will that be good enough?"

In TechFreedom's letter to lawmakers, the think tank predicted that KOSA would force platforms to age-verify users" because it's the most risk-averse path to compliance.

While doubtless well-intentioned, these changes merely trade a clear, explicit mandate for a vague, implicit one; the unconstitutional effect on anonymous expression will be the same," TechFreedom's letter said.

The Mullin quoted above is Joe Mullin from EFF (who used to write for Ars Technica himself!), who also highlights the 1st Amendment concerns with the bill:

Because KOSA enforcement falls to state attorneys general-many of whom are elected officials- the ACLU's senior policy counsel Cody Venzke told Ars that it's easier for the government to target and censor specific viewpoints that clash with their party politics.

Mullin agreed, saying that part of the reason why KOSA has so much bipartisan support is because both Democrats and Republicans are in favor of censoring opposing viewpoints and are assuming the censorship will go their way."

It's just totally crazy," Mullin told Ars. People have very different views on how you can mitigate" harms like eating disorders, addiction, bullying, sexual exploitation, drug use, alcohol use, gambling, tobacco use, and all predatory or deceptive marketing practices" by controlling online speech."

People don't agree about what's harmful on any of these issues," Mullin said. These are challenging things to deal with, and families do it differently. And I don't think it's gonna be better when the government starts creating rules about it."

Venzke told Ars that outside of very narrow exceptions," it's not Congress's role to decide what is good speech and what is bad speech."

There's more in that very thorough article.

Perhaps more surprising, though, given the support of the Heritage Foundation for KOSA (they're the ones who gleefully talked about how it could be used to suppress LGBTQ+ speech), is that the Wall Street Journal has also run an op-ed highlighting the bill's censorial problems. Specifically, the piece by Rachel Chiu rightly points out that even if we're concerned about harmful speech," the 1st Amendment says that Congress can't regulate it away.

According to the text of KOSA, a state attorney general could bring a civil lawsuit against a platform if it doesn't take down content that falls under the bill's definition of harmful. For instance, a state could sue Instagram for violating the act's duty of care if it doesn't take down posts that make a child feel more anxious.

Like hate-speech laws, the bill would give officials the authority to skirt the First Amendment and censor protected content. After a mass shooting in Buffalo, N.Y., last year, New York swiftly passed a law to curb hateful speech on social media sites. A federal judge granted a preliminary injunction, writing that the First Amendment protects from state regulation speech that may be deemed hateful' and generally disfavors regulation of speech based on its content." KOSA would similarly encourage authorities to pressure companies into removing posts the government considers harmful."

Finally, there's a piece in the Orange County Register, also highlighting the 1st Amendment problems with the bill, highlighting the problematic and vague language:

KOSA imposes an amorphous duty of care" on platforms, online games, messaging applications and streaming services, demanding reasonable measures" to protect" against and mitigate" various harms" to users younger than 17. The targeted dangers include anxiety, depression, suicide, eating disorders, substance abuse, addiction-like behaviors," physical violence, online bullying, harassment, sexual exploitation and abuse, financial harms," and promotion of narcotic drugs," tobacco products, alcohol or gambling.

That's a tall order, and it is not at all clear what meeting this obligation would entail. Nor is it clear when the duty of care applies.

As amended by the Senate Commerce Committee, KOSA applies to any covered platform" that knows" its users include minors. But no one knows what knows" means.

In addition to actual knowledge," that condition can be satisfied by knowledge fairly implied on the basis of objective circumstances." KOSA directs the Federal Trade Commission, within 18 months of the bill's passage, to issue guidance" about how to understand the latter phrase.

That guidance, however, would not bind the FTC, which is charged with investigating and penalizing platforms that it thinks have violated KOSA. Nor would it constrain state attorneys general, who would be authorized to independently enforce KOSA through civil actions."

As that piece notes, the pesky 1st Amendment gets in the way again:

The vast majority of speech that people might consider unsuitable for minors is protected by the First Amendment, which means restricting access to it based on a government mandate is constitutionally problematic. The Supreme Court has repeatedly made that point in cases involving the internet and violent video games.

It's good to see the media highlighting the problems with this bill, especially given how much support it appears to have in Congress.

The remaining question, of course, is whether or not Congress cares. In the Ars Technica piece, supporters of the bill repeatedly try to brush away the concerns or insist that the problems have been solved. It even notes that some of the groups who opposed earlier versions of KOSA have been convinced to support the latest version. But, as is explained above (and here on Techdirt), the latest version still has very real problems with fatal flaws that raise significant 1st Amendment and privacy concerns.

Rather than addressing those concerns (which would fundamentally alter the bill), supporters instead want to just trash and insult those raising these issues. In the Ars Technica piece, none of the supporters respond to the concerns directly, but rather insist that those still complaining about the bill have ulterior motives - a pretty clear sign that they know they can't substantively respond to the issues being raised.

KOSA is, of course, just one of a number of problematic bills Congress is considering once they're back in session in a few weeks. It would be nice if Congress actually decided to engage seriously about the problems of these bills, and was willing to explore actual ways to help deal with the problems they're observing. Unfortunately, they seem more interested in just doing something," even if that something is both dangerous and unconstitutional.