The US KOSA Legislation is a Threat to Free Speech, Critics Warn

The Kids Online Safety Act (KOSA) is currently working its way through Congress in the US. It is an obvious threat to free speech according to critics.

There are a number of threats to digital rights going around in the US. One example of these threats is the Kids Online Safety Act (or KOSA). It is also known as Senate Bill 1409. It is drawing considerable controversy across the US right now – and with good reason.

To get an idea of what the legislation envisions, imagine that if you want to access the internet to post something, you would be required to submit something like a drivers license. If it’s not a drivers license, then it has to be something that accurately identifies where you live and who you are. If platforms don’t collect that intimate level of details and personal information, then the government can sue them over it. What’s more, platforms would have a duty of care to protect people from anything potentially controversial. An example would be gender affirming healthcare for instance. The platforms would have a duty to prevent people they can’t identify from accessing such information.

All of this probably sounds ridiculous – Orwellian even. More importantly, this sounds highly unconstitutional. On all three counts, you are almost certainly correct. Yet, that is precisely the world that was envisioned under KOSA, a bill currently working it’s way through the US congress right now. Before you assume that this is one party or another getting out of line here, it is actually a bi-partisan bill. Because the US government is going to US government, they are doing all of this in the name of protecting the children (naturally).

Luckily, it is getting attention in the US. According to TechDirt, influencers have started talking about this bill:

We’ve talked a lot about just how bad the Kids Online Safety Act (KOSA) is. Yet some people (including people who, frankly, should know better) keep trying to tell me how well meaning it is. It’s not. It’s dangerous. But it has real momentum. A massive bipartisan group of Senators are co-sponsors of the bill.

And, no matter how many times we explain that KOSA (in the name of “protecting the children”) will put kids at risk, politicians still want to pretend it’s fine. Hell, the Heritage Foundation even flat out admitted that they planned to use KOSA to censor LGBTQ+ content, in an attempt to bar children from such content. It remains incredible to me that any Democrat could support a bill when Republicans admit up front how they plan to abuse it.

But, of course, because it’s called the “Kids Online Safety Act” and you have brands like Dove (yeah, I don’t get it either) running a whole campaign in support of it, even convincing Lizzo that the bill is good, it feels like the anti-KOSA voices have been muted.

Hopefully that’s changing. A friend pointed me to a TikTok influencer, pearlmania500 (aka Alex Pearlman), with about two million followers, who has posted a fun little anti-KOSA rant, pointing out just how dangerous KOSA is.


♬ original sound – Pearlmania500

Lawmakers, for their part, apparently pushed back against these criticisms and claimed that they have gone through and fixed the problems – even pretending that the bill doesn’t require age verification at all. In a move that I’ve seen a number of times in the Canadian Bill C-11 and Bill C-18 debate, the lawmakers in the US apparently adopted some roundabout language to basically require platforms to implement age verification without directly saying it is an age verification bill. From TechDirt:

On Wednesday, the Senate revealed an amended version of the Kids Online Safety Act (KOSA) for today’s hearing over the bill. One would hope with so much public pushback over the bill, they might do something crazy like trying to fix the bill.

That is, apparently, way too much to ask.

Earlier today, the Senate held its markup on the bill, in which numerous Senators from both parties pretended they had listened to the concerns people had about KOSA and “fixed” them. They did not. There was misleading talk about “protecting the children” (the bill will put them at greater risk) and a bunch of other nonsense. Lots of Senators then tried to amend KOSA further to add their own pet (usually unconstitutional) “save the children” bills to it.

Then they moved forward with the bill so that it might come to a floor vote if Chuck Schumer decides that it’s really time to destroy the internet.

TechFreedom’s Ari Cohn has an incredibly thorough breakdown of the current version of the bill and its myriad problems. For example, in response to concerns that KOSA would require age verification, the amended KOSA basically adds a “nuh uh, we have no such requirement” into the bill. But then creates an impossibly (and constitutionally) vague standard:

As we wrote last year, KOSA’s original language would have effectively required covered platforms to verify the age and thus the identity of every user. KOSA’s revised text attempts to avoid this First Amendment problem by requiring covered platforms to protect only those users that it has “actual knowledge or knowledge fairly implied on the basis of objective circumstances” are minors. Furthermore, new rules of construction say that the bill does not require platforms to collect age-related data or perform age verification. 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.

It is entirely unclear what constitutes “knowledge fairly implied” that a particular user is a minor. In an enforcement action, the Federal Trade Commission must consider the “totality of the circumstances,” which includes, but is not limited to, “whether the operator, using available technology, exercised reasonable care.” Vague as this provision is, it apparently does not apply to civil suits brought by state attorneys general, which could give them even more unpredictable discretion.

The article links to the TechFreedom’s open letter which you can also read here (PDF).

One of the major criticisms of this is the fact that it can very easily be used to suppress LGBTQ content in the US. A US State Attorney General could consider LGBTQ content to be dangerous to minors and demand that platforms block access to that content or face a lawsuit. Given some of the extremist incidences that have cropped up in the US as of late, that is not even close to being out of the question, either.

At any rate, there are calls for American’s to push back against this bill. If you care about your personal privacy or your right to freedom of expression online, then this bill should be cause for concern. Critics of KOSA are asking Americans to contact their member of Congress and urge them to put the brakes on this bill before it causes real harm to the internet and your rights. As everyone has more or less learned the hard way, you can’t really take anything for granted these days.

Drew Wilson on Twitter: @icecube85 and Facebook.

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