There’s been plenty of bad news regarding federal legislation in 2023. For starters, Congress has failed to pass meaningful comprehensive data privacy reforms. Instead, legislators have spent an enormous amount of energy pushing dangerous legislation that’s intended to limit young people’s use of some of the most popular sites and apps, all under the guise of protecting kids. Unfortunately, many of these bills would run roughshod over the rights of young people and adults in the process. We spent much of the year fighting these dangerous “child safety” bills, while also pointing out to legislators that comprehensive data privacy legislation would be more likely to pass constitutional muster and address many of the issues that these child safety bills focus on.
But there’s also good news: so far, none of these dangerous bills have been passed at the federal level, or signed into law. That’s thanks to a large coalition of digital rights groups and other organizations pushing back, as well as tens of thousands of individuals demanding protections for online rights in the many bills put forward.
Kids Online Safety Act Returns
The biggest danger has come from the Kids Online Safety Act (KOSA). Originally introduced in 2022, it was reintroduced this year and amended several times, and as of today, has 46 co-sponsors in the Senate. As soon as it was reintroduced, we fought back, because KOSA is fundamentally a censorship bill. The heart of the bill is a “Duty of Care” that the government will force on a huge number of websites, apps, social networks, messaging forums, and online video games. KOSA will compel even the smallest online forums to take action against content that politicians believe will cause minors “anxiety,” “depression,” or encourage substance abuse, among other behaviors. Of course, almost any content could easily fit into these categories—in particular, truthful news about what’s going on in the world, including wars, gun violence, and climate change. Kids don’t need to fall into a wormhole of internet content to get anxious; they could see a newspaper on the breakfast table.
Fortunately, so many people oppose KOSA that it never made it to the Senate floor for a full vote.
KOSA will empower every state’s attorney general as well as the Federal Trade Commission (FTC) to file lawsuits against websites or apps that the government believes are failing to “prevent or mitigate” the list of bad things that could influence kids online. Platforms affected by KOSA would likely find it impossible to filter out this type of “harmful” content, though they would likely try. Online services that want to host serious discussions about mental health issues, sexuality, gender identity, substance abuse, or a host of other issues, will all have to beg minors to leave, and institute age verification tools to ensure that it happens. Age verification systems are surveillance systems that threaten everyone’s privacy. Mandatory age verification, and with it, mandatory identity verification, is the wrong approach to protecting young people online.
The Senate passed amendments to KOSA later in the year, but these do not resolve its issues. As an example, liability under the law was shifted to be triggered only for content that online services recommend to users under 18, rather than content that minors specifically search for. In practice, that means platforms could not proactively show content to young users that could be “harmful,” but could present that content to them. How this would play out in practice is unclear; search results are recommendations, and future recommendations are impacted by previous searches. But however it’s interpreted, it’s still censorship—and it fundamentally misunderstands how search works online. Ultimately, no amendment will change the basic fact that KOSA’s duty of care turns what is meant to be a bill about child safety into a censorship bill that will harm the rights of both adult and minor users.
Fortunately, so many people oppose KOSA that it never made it to the Senate floor for a full vote. In fact, even many of the young people it is intended to help are vehemently against it. We will continue to oppose it in the new year, and urge you to contact your congressperson about it today.
Most KOSA Alternatives Aren’t Much Better
KOSA wasn’t the only child safety bill Congress put forward this year. The Protecting Kids on Social Media Act would combine some of the worst elements of other social media bills aimed at “protecting the children” into a single law. It includes elements of KOSA as well as several ideas pulled from state bills that have passed this year, such as Utah’s surveillance-heavy Social Media Regulations law.
When originally introduced, the Protecting Kids on Social Media Act had five major components:
- A mandate that social media companies verify the ages of all account holders, including adults
- A ban on children under age 13 using social media at all
- A mandate that social media companies obtain parent or guardian consent before minors over 12 years old and under 18 years old may use social media
- A ban on the data of minors (anyone over 12 years old and under 18 years old) being used to inform a social media platform’s content recommendation algorithm
- The creation of a digital ID pilot program, instituted by the Department of Commerce, for citizens and legal residents, to verify ages and parent/guardian-minor relationships
EFF is opposed to all of these components, and has written extensively about why age verification mandates and parental consent requirements are generally dangerous and likely unconstitutional.
In response to criticisms, senators updated the bill to remove some of the most flagrantly unconstitutional provisions: it no longer expressly mandates that social media companies verify the ages of all account holders, including adults. Nor does it mandate that social media companies obtain parent or guardian consent before teens may use social media.
One silver lining to this fight is that it has activated young people.
Still, it remains an unconstitutional bill that replaces parents’ choices about what their children can do online with a government-mandated prohibition. It would still prohibit children under 13 from using any ad-based social media, despite the vast majority of content on social media being lawful speech fully protected by the First Amendment. If enacted, the bill would suffer a similar fate to a California law struck down in 2011 for violating the First Amendment, which was aimed at restricting minors’ access to violent video games.
What’s Next
One silver lining to this fight is that it has activated young people. The threat of KOSA, as well as several similar state-level bills that did pass, has made it clear that young people may be the biggest target for online censorship and surveillance, but they are also a strong weapon against them.
The authors of these bills have good, laudable intentions. But laws that would force platforms to determine the age of their users are privacy-invasive, and laws that restrict speech—even if only for those who can’t prove they are above a certain age—are censorship laws. We expect that KOSA, at least, will return in one form or another. We will be ready when it does.
This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.
