The Kids Online Safety Act (KOSA) was once thought to be dead, but recent developments suggest it has returned.
For many “western” governments, one of the biggest issues they are tackling is the question of how best to crack down on civil rights when it comes to the internet. Specifically, how does the government crack down on expression and control what people say on the internet in general. These civil rights crack downs have taken many forms. Whether it is “online harms” bills, age verification laws, or a plethora of other bills sold as “protect the children” bills, efforts to control online speech have been pushed for a number of years now.
One such effort to silence certain forms of legally protected speech comes in the form of KOSA. KOSA has been an off again, on again bill designed to censor anything deemed “harmful” to minors. What is considered “harmful” is left to any government in the future to determine. It orders online services to censor such content under vague so-called “duty of care” provisions or face massive penalties. Unsurprisingly, that raised alarms among digital rights organizations, civil rights organizations, and free speech advocates thanks to the seemingly unprecedented amounts of power the government was granting itself under such a bill.
Last month, at least one iteration of this bill was shelved, suggesting this particular censorship bill might have died in the process. Digital rights advocates collectively breathed a sigh of relief at the news, knowing that at least one threat to the open internet has at least, temporarily, stopped.
Unfortunately, that reprieve really was temporary. Despite an election coming up in November, there has been a renewed effort to resurrect the bill and pass it at the last second. From TechDirt:
Just when you thought it was safe to go back on the internet, KOSA rears its ugly head once again.
The rumors of KOSA’s demise in Congress may have been overstated. Following a big push by supporters of the bill, including Senator Marsha “we need this to protect kids from the transgender in our culture” Blackburn, House Energy and Commerce Committee Chair, Rep. Cathy McMorris Rodgers, has announced that she’ll hold a markup of it and 15 other bills on Wednesday of this week.
This does not mean that KOSA is really going to get a vote. Lots of things could happen. But it does mean that KOSA (and COPPA 2.0, which the Senate combined into KOSPA — the Kids Online Safety & Privacy Act) are getting a bit of new life.
It’s possible the markup will be delayed or won’t actually happen. Markups get announced and delayed and sometimes shelved entirely. And what happens at the markup may matter. Markups are when other committee members can offer up amendments, and it gives everyone a sense of what people feel about a bill. It’s possible that amendments could change KOSA quite a bit, though the fundamental problems of the bill are unfixable.
Indeed, supporters of KOSA have earlier admitted that KOSA has little to do with protecting children and more to do with censoring LGBTQ+ and abortion content (among other things). Basically, any online speech Republican’s don’t like gets censored.
In response to the news, the Electronic Frontier Foundation (EFF) has published a reminder for why this bill is so horrible:
This summer, the U.S. Senate passed the Kids Online Safety Act (KOSA), a bill that would grant the federal government and state attorneys general the power to restrict online speech they find objectionable in a misguided and ineffective attempt to protect kids online. A number of organizations have already sounded the alarm on KOSA’s danger to online LGBTQ+ content, but the hazards of the bill don’t stop there.
KOSA puts abortion seekers at risk. It could easily lead to censorship of vital and potentially life-saving information about sexual and reproductive healthcare. And by age-gating the internet, it could result in websites requiring users to submit identification, undermining the ability to remain anonymous while searching for abortion information online.
As EFF has repeatedly warned, KOSA will stifle online speech. It gives government officials the dangerous and unconstitutional power to decide what types of content can be shared and read online. Under one of its key censorship provisions, KOSA would create what the bill calls a “duty of care.” This provision would require websites, apps, and online platforms to comply with a vague and overbroad mandate to prevent and mitigate “harm to minors” in all their “design features.”
KOSA contains a long list of harms that websites have a duty to protect against, including emotional disturbance, acts that lead to bodily harm, and online harassment, among others. The list of harms is open for interpretation. And many of the harms are so subjective that government officials could claim any number of issues fit the bill.
This opens the door for political weaponization of KOSA—including by anti-abortion officials. KOSA is ambiguous enough to allow officials to easily argue that its mandate includes sexual and reproductive healthcare information. They could, for example, claim that abortion information causes emotional disturbance or death, or could lead to “sexual exploitation and abuse.” This is especially concerning given the anti-abortion movement’s long history of justifying abortion restrictions by claiming that abortions cause mental health issues, including depression and self-harm (despite credible research to the contrary).
Today, TechDirt has noted that lawmakers have made KOSA much worse:
The new versions of KOSA and COPPA 2.0, however, still do not fix the underlying problems of these bills, and in some ways appear to make them worse. The new version of KOSA adds in new language that will absolutely lead to abuse by Republicans to force companies to remove LGBTQ+ content. At least the version that passed the Senate made some weak attempts to try to insulate the bill against claims that was possible. Not so much here.
There’s a new part of the “duty of care” section (always the most problematic part of the bill) that says that “high impact online companies” need to “prevent and mitigate” the following:
Promotion of inherently dangerous acts that are likely to cause serious bodily harm, serious emotional disturbance, or death.
On its face, this might not seem all that troubling, until you actually think about it. First off, it seems like an attempt to hold websites liable for various challenges that the media loves to report on, though there is scant evidence that they lead to widespread copycat behavior. As we’ve discussed, these kinds of stupid “challenges” predate even the internet. As the CDC has noted, there are reports of such challenges appearing in newspapers dating back to the 1970s.
Did we threaten to put liability on newspapers for that? Of course not. Yes, it’s bad if kids are putting themselves in danger, but when these challenges made the rounds in the 70s and 80s we taught kids not to do stupid stuff. There’s no reason we can’t continue to educate kids, rather than hand off an impossible task to internet companies to magically find and stop all such content in the first place.
As much as people may not like it, most of those challenges are protected First Amendment speech. Holding companies liable for not magically making them disappear is going to be a problem.
Perhaps a bigger deal, though, is the inclusion of “serious emotional disturbance” in that description. The bill includes a definition for this, which might seem better than the vague “mental health disorder” that was in the original KOSA, but here it creates even more problems:
SERIOUS EMOTIONAL DISTURBANCE.—The term ‘‘serious emotional disturbance’’ means, with respect to a minor, the presence of a diagnosable mental, behavioral, or emotional disorder in the past year, which resulted in functional impairment that substantially interferes with or limits the minor’s role or functioning in family, school, or community activities.
So, um, can literally anyone in Congress explain how a social media platform will know whether or not (1) someone using their website has been diagnosed with a “serious emotional disturbance,” or (2) that content on their website will lead to a diagnosis of a “serious emotional disturbance”?
A pretty straight reading of this suggests that social media companies need to get direct access to everyone’s medical records to determine if they’ve been diagnosed with an “emotional disturbance.” And, well, that doesn’t seem good.
Mainstream media, for their part, are actively misleading their readers on this (because of course they are), reporting this as little more than a bill to protect the children. From The Hill:
Senators and parents are ratcheting up pressure on House lawmakers this week to push forward with legislation aimed at increasing children’s digital safety and privacy as a House committee prepares to mark up the bill Wednesday.
Several advocacy groups are coming to the nation’s capital this week to emphasize the urgency of the bill, Blackburn and Blumenthal’s offices confirmed to The Hill.
So, mainstream media is ultimately trying to push a disinformation campaign with their lobbyist pals to suggest that everyone is super happy with the bill and that it’s practically unanimously supported. This despite the reality saying pretty much the exact opposite. Still, mainstream media misleading readers about a tech related bill has really become par for the course these days, so the disinformation we’re seeing is not really surprising.
Still, there is some reason for hope here. After all, the next general election is in November. Should the House adjourn before the bill comes to a vote, there is a very good chance that the legislation will have to start over from scratch after the election is over. So, not all hope is lost, but for those who have a strong desire to ruin the internet, they are making one last ditch attempt to wreck the internet by pushing this bill at the last minute. As a result, internet users everywhere are hoping they don’t succeed.
