This Bipartisan Bill To Protect Kids On The Internet Is A First Amendment Nightmare

Time to talk about the Kids Online Safety Act.

There are few things we can be sure about in this life, but one I know for certain is the fact that if you want to do something really messed up, if you want to spread a truly absurd moral panic or conspiracy theory, your best bet is always going to be to make it about saving the children.

This can also help you pass a very bad law without anyone paying very much attention to what is actually in it. That is what we are going to say/hope is going on with the 22 Democrats who signed on to support the Kids Online Safety Act (KOSA) — especially Elizabeth Warren and Tammy Baldwin because we expect better from them than that. The rest (including Richard Blumenthal, Dick Durbin, Tim Kaine, Joe Manchin, Bob Casey, Bob … Menendez) are of course unfortunate but less likely to cause anyone to reach for the smelling salts. No one is shocked they’d be a tad Tipper Gore about things.

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The bill, sponsored by Marsha Blackburn (R-TN) and Richard Blumenthal (D-But He’s Always Been Bad About This Stuff), purports to protect our nation’s precious children from bad stuff on the internet.

On its face, it’s just a nice bill to protect children’s safety and mental health on social media and give parents and kids more control over what they see online. Some of it is even good — for instance, it’s understandable that Elizabeth Warren would like the part about being able to opt out of targeted advertising.

The one-page description makes it look relatively harmless.

Provides parents and kids safeguards and tools to protect kids’ experiences online: The bill requires social media platforms provide minors with options to protect their information, disable addictive product features, and opt-out of algorithmic recommendations — and requires platforms to enable the strongest settings by default. The bill also gives parents new controls to help support their children and spot harmful behaviors, including by providing children and parents with a dedicated channel to report harms to kids to the platform.

Creates accountability for social media’s harms to kids: The bill creates a duty for social media platforms to prevent and mitigate harms to minors, such as content promoting of self harm, suicide, eating disorders, substance abuse, and sexual exploitation. It also requires social media platforms perform an annual independent audit assessing risks to minors, their compliance with this Act, and whether the platform is taking meaningful steps to prevent those harms.

There is no question that there are a lot of things online that are harmful to children, and radicalizing algorithms that direct them to Andrew Tate or Nick Fuentes are a serious issue.

But there is, indeed, a very seedy underbelly to it all — and the name “Marsha Blackburn” should provide a pretty big clue about what that underbelly looks like.

Blackburn has been fairly clear that one of the priorities for her with this bill is “protecting minor children from the transgender.”

Right wing, anti-LGBTQ+ groups such as the America First Policy Initiative and the American Principles Project and the Heritage Foundation have been open about their desire to weaponize this bill against LGBTQ+ youth, and this is despite some superficial changes to the bill made earlier this year that were meant to keep the bill from directly harming LGBTQ+ youth.

But as a letter written by digital rights group Fight For the Future explains, these groups still support the bill because it can still be weaponized against LGBTQ+ youth and are promoting it as such:

Heritage Foundation’s support of the bill, to use against trans content, has continued despite the insufficient changes to KOSA that were offered as a response to our concerns. We know the proposed changes don’t address our concerns and so does the Heritage Foundation. As we’ve explained, the fixes do not work because it still gives broad authority to state Attorneys General who can interpret the bill to include a duty to prevent youth from accessing LGBTQ content. Anti-trans AGs can easily find doctors who will say that any such prohibition will be in the interest of youth mental health as described in the bill.

While the changes to the bill have exempted news and information sites from these rules and have moved away from requiring the implementation of age verification (which, were it done effectively, would require people to share their IDs to use a social media site, which would be a huge violation of privacy), there are still a lot of issues.

The biggest issue, as mentioned in Fight for the Future’s letter, is the fact that state attorneys general will be able to use this law to sue sites that they personally believe could lead to “anxiety or depression” or “sexual exploitation of a minor.” Does anyone think for a moment that AGs in right-wing states where they are currently going around banning books left and right are not going to claim that discussions about LGBTQ+ identities will cause “anxiety or depression?” Or even discussions of racism? Many of the red state bans on discussions or acknowledgements of racism are already couched in terms of mental health — ie: causing white people to feel “distressed” or guilty.

One of the updated rules is that a “covered platform shall act in the best interests of a user that the platform knows or reasonably should know is a minor by taking reasonable measures in its design and operation of products and services.”

As the ACLU has noted, it’s probably going to be a lot easier for these sites to just censor everything for everybody than to worry about not being able to determine if someone is under 16 or not. That is the problem with subjective restrictions like that. It’s why “life of the mother” exceptions are largely meaningless — because people can’t be sure if their personal judgment is going to hold up in a court of law. It’s easier to just implement the new rules without exceptions.

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An article about KOSA in Jezebel last week addressed this issue, specifically in terms of how the bill could be used to limit the ability of people of all ages in states that ban abortion to get information about abortion funds that could help them go out of state to get one or participate in online forums discussing abortion, period.

Representatives from several advocacy groups opposing the bill, including Electronic Frontiers Foundation, Fight for the Future, and the ACLU said that it was very likely that the effect of this bill, in terms of chilling free speech on subjects like abortion and birth control, could be similar to what happened with SESTA/FOSTA.

Via Jezebel:

[Eva] Galperin [of the Electronic Frontiers Foundation] agreed that sites are likely to over-censor or “comply in advance” in order to avoid lawsuits. “To people who say, ‘Oh, surely the platforms will not do this,’ I recommend taking a look at the way that platforms have responded to SESTA/FOSTA,” Galperin said. She’s referring to the 2018 bills Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which were ostensibly meant to fight trafficking but resulted in the censorship of sex workers. […]

KOSA “in some ways is more of a threat,” said [Cody] Venzke [of the ACLU. “Whereas SESTA/FOSTA tied much of its liability to federal criminal law, there is nothing in KOSA that so limits the legislation’s scope.” KOSA is about mitigating harms from anxiety and depression, which is extremely broad and subjective: “The portions of the duty of care are untethered to any particular legal definitions.”

When it comes to issues of speech and censorship, we can’t just say “Oh that sounds nice! Protecting children is good! Let’s do that!” and move on — at any time, but especially not at this particular time when we know the Right has an agenda that involves censorship and is looking for any cudgel available to them to restrict access to information they don’t like.