The Senate Committee on Commerce, Science, and Transportation has rubber-stamped Sen. Richard Blumenthal’s (D-CT) controversial Kids Online Safety Act (KOSA). The act proposes extending liability to online platforms for “designs and services” that fail to “prevent and mitigate” social ills like anxiety, depression, eating disorders, substance abuse, online bullying, sexual abuse, and suicidal behavior in young people. Despite what can be assumed to be the best intentions, if this proposal were properly enforced it would present serious First Amendment issues.
Many social ills addressed in KOSA are indeed horrendous, such as teen suicide. Online harassment does occur and can negatively affect children’s mental health, and private firms have a social obligation to help mitigate it. This does not change the practical and legal implications of going from advocating for private firms to moderate content better to invoking state action on limiting online access and content.
For example, to hold companies liable for any harm to minors that occurs on their platform, these companies will need to know who is and is not a minor. If this determination is too lenient, such as simply asking the user to click a box, it will have no practical effect. On the other hand, if the site employs more restrictive measures such as biometrics or identification cards, the result could run afoul of the First Amendment due to its potential to limit the speech of adults. Such effects would also negatively impact online consumer privacy.
Furthermore, because KOSA pertains to liability for the effects online platforms have on minors, content moderation is truly what is mandated, adding to the First Amendment violation concerns (though not constituting the main concern). One caveat is that the sites’ intended audience must be minors, which could include the most popular digital platforms depending on how this is interpreted.
Prior efforts to implement an age verification mandate have failed to make it through the courts, notably in the Communication Decency Act of 1996 and the Child Online Protection Act of 1998. It is unlikely that KOSA will be any different.
Proponents of KOSA have noted that the bill explicitly states age verification is not required. However, when minors are a potential liability for platforms, knowing who a minor is becomes imperative. The question then asked is how to implement age verification without running afoul of the First Amendment. To this end, there may be no full-proof answer, as the French Commission Nationale de l’informatique et des Libertés (CNIL) has concluded, noting that even stringent verification schemes can be circumvented with a VPN. Though some technology, such as face scanners, could be used to verify identity, consumers would be at risk of losing privacy and civil liberties.
Exploring further, it is important to discuss who will decide when sites become liable for promoting “social ills.” That task will go to each state’s attorney general, raising obvious concerns about how this bill could become politicized as different states vary in how they view “social ills.” In efforts to stop bullying, it is easy to imagine some Democrat-led states holding sites liable for instances of misgendering, as a Democratic legislator in Virginia has already suggested. Likewise, LGBTQ organizations have previously written an open letter opposing KOSA because of its potential for allowing Republican states to restrict their content under the notion that it promotes “social ills.”
Much like when Elon Musk declared that “cis” would be considered hate speech on Twitter and was lambasted, politicians are no better at establishing consensus on what constitutes a “social ill.” Along with implementing identification verification gates to access social media, KOSA is in dubious waters regarding the First Amendment. Legislatures need to acknowledge this fact and not pretend that the bill won’t have these effects.
Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.