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Overview of KOSA

Just before the August recess this year,  , the Kids Online Safety Act (KOSA) passed unanimously out of the U.S. Senate Committee on Commerce, Science and Transportation. Originally introduced by Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) in February 2022 and reintroduced in May 2023, KOSA is the latest in Congress’s bipartisan push to pass comprehensive data privacy laws. The recently amended bill claims to provide children and parents with the tools to protect “minors,” defined as people under 17 years old, from harmful online content.Such content includes materials promoting self-harm, eating disorders, online addiction, bullying, and other “destructive behaviors” on social media. as social media promoting self-harm, eating disorders, online addiction, bullying, and other “destructive behaviors.” The bill has also been supported by  , signaling public support for the bill.

In short, KOSA aims to protect children’s online experiences in : by providing children and parents with the tools to safeguard their online experience, holding online platforms accountable for their harm to children, and demystifying black box algorithms. First,   to protect their information, disable addictive features, and opt out of personalized algorithm recommendations. The law will also provide parents with new controls on these platforms to detect harmful behaviors and provide them with a specific channel to report any of these potential harms. Second,   by creating a duty of care for them to prevent and mitigate specific dangers to children, including the promotion of suicide, eating disorder, substance abuse, sexual exploitation, and advertisements for certain age-restrictive products like tobacco and alcohol. Additionally, it will mandate major social media platforms to perform an independent audit to assess their risk to children, their compliance with KOSA, and whether the platform is taking conscious steps to prevent those harms. Third, from online platforms to encourage research regarding online harms to the well-being of minors.

 

Recent Amendments to KOSA

When KOSA was reintroduced in 2023 to the 118th Congress, it came with several changes from its 2022 predecessor. Though none of the amendments fundamentally change the goals of KOSA, they highlight certain concerns and nuances with the first version of the bill. First, the duty of care standard was tightened so that online platforms can only be held liable if they have actual knowledge that a minor is using the platform. In the former version of the bill, the standard applied to all platforms that were used by minors, or “reasonably likely to be used” by minors. Despite this improvement, the practical effects of the amendment are minimal— for example, a site that knew that a certain portion of its users were minors, even if the minors were lying about their age to access the site, could be sued by the state.

Senator John Thune (R-SD) contributed another major amendment to the bill. This amendment requires larger platforms to notify users when their content is being manipulated using an algorithm and to provide them with an alternative that does not use any user data. If the user chooses to opt out, this amendment effectively prevents platforms from using the most basic demographic information to determine the content the user sees. Though this amendment tackles the issue of “ ” and grants more autonomy to the users, critics of the Thune amendment lament that it  , endangering the independence that popularized online platforms in the first place.

 

Criticisms of KOSA

Despite its recent changes, KOSA’s critics argue that these subtle changes do not alter the deep flaws of the bill, labeling it as a censorship bill. The most significant criticism is that KOSA is supported by a variety of anti-LGBTQ+ organizations, and many worry that the bill will empower states to target LGBTQ+ content by arguing that it leads to depression, anxiety, eating disorders, etc. These concerns are not mere speculation—the Heritage Foundation, a prominent think tank, stated that it aims to “keep[ing] trans content away from children” using this bill. In fact, Senator Blackburn, one of the co-sponsors of the bill, has been vocal about her anti-trans views and suggested that this bipartisan bill would be used to “protect[ing] minor children from the transgender in this culture.” However, some child advocacy organizations like Fairplay, have continued to argue that the bill will protect gender nonconforming youth, because they are already more at risk for cyberbullying, harassment, eating disorders, and substance use.

Another significant criticism is that the bill could unintentionally filter and block legal speech. Because the bill holds platforms liable for failing to “ ” a variety of social issues and for detecting patterns of use that suggest addiction-like behaviors, platforms are heavily restricted in what they can present under this bill. Additionally, because the   in what designs or services lead to these social issues and addiction patterns, the bill itself does not provide any clear guidelines to online platforms, making it likely that they would censor any content that would expose them to liability. If this provision is narrowly interpreted, KOSA could hold platforms liable for basically any and all content they present to minors.

Relatedly, critics also argue that KOSA gives too much power to individual State Attorney Generals, as they have widespread authority to decide what type of content is “dangerous” to minors under KOSA. Attorney Generals (AG), acting as elected officials or gubernatorial appointees, have sworn duties to serve the state’s residents and execute its laws. Therefore, critics are alarmed that many states have recently moved to limit public education about critical race theory and LGBTQ+ issues, as these topics could also be censored under KOSA if the State AG were to agree that they are “dangerous” to kids. Even if public opinion says that these are not dangerous topics, the final decision would be left to the State AG, and critics argue that the AG should not get to decide these complex decisions involving morality.

The last major criticism of the bill is that despite calls for change from the previous version of the bill, KOSA would still lead to age verification on online platforms. At first glance, it makes sense that websites would now require age verification because to determine if and how they are impacting minors, they must first know whether minors use the platform in the first place. Unfortunately, critics argue that age verification can lead to its own host of problems—it undermines user privacy by requiring users to upload identity verification documents and share private data, regardless of how old they are. Even other types of “age assurance” tools violate user privacy by requiring photo verification and suffer from accuracy issues. Though the new “reasonableness” standard for the knowledge prong is a step down from the previous “knew or should have known” standard, this small change is unlikely to prevent online platforms from implementing age verifications. To get around age verification, an online platform could choose to simply filter and block certain types of content for all users, regardless of age. However, this would be a significant infringement of free media and free speech on the Internet, two qualities that have come to define the digital age.

 

Looking Ahead

Though KOSA is a timely challenge to Big Tech with well-intentioned goals, the bill has areas of improvement. As the bill moves into the House and Senate floors for further consideration, those interested in children’s privacy should pay close attention and keep track of new amendments made to the bill, as it has the potential to fundamentally change how both children and adults interact with online platforms.

 

Suggested Citation: Allison Kim, The Kids Online Safety Act: A Censorship Bill or a Champion of Children’s Online Safety?, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 23, 2023), http://jlpp.org/blogzine/the-kids-online-safety-act-a-censorship-bill-or-a-champion-of-childrens-online-safety/.