Senate Hearing Scheduled This Week for Controversial KOSA Bill

WASHINGTON—A controversial internet regulation bill is scheduled for a markup hearing before the U.S. Senate Commerce, Science, and Transportation Committee on July 27. Dubbed the Kids Online Safety Act (KOSA), the bill was introduced by Sens. Marsha Blackburn, R-TN, and Richard Blumenthal, D-CT (pictured), and features a bipartisan class of other senators signing on as co-sponsors. The committee will meet in executive session on July 27, reviewing KOSA and marking it up for potential amendments before killing the bill or advancing it for a reading on the Senate floor. According to the language of the bill, KOSA—if it were to become law—would allow regulators to pressure tech platforms used by individuals under the age of 16 to adhere to a duty of care to prevent the promotion of content that depicts bullying, self-harm, substances abuse and other harmful material, as defined by the bill and regulators. This duty of care would lead to a broad definition of what is considered harmful to minors, forcing platforms to institute filtering and content censorship. This would also lead to challenges for platforms to conduct moderation operations at such a scale leading to the censorship of content that isn’t considered harmful or in violation of the KOSA regulations. While the bill is presented by its sponsors as a measure to hold large technology companies accountable for harming the mental health of minors, KOSA is more a measure that gives the federal and state governments significant power to block content. “Our bill provides specific tools to stop Big Tech companies from driving toxic content at kids and to hold them accountable for putting profits over safety,” said Sen. Blumenthal in a press release published by his and Sen. Blackburn’s offices in May 2023. Blumenthal adds that the bill has a “strong bipartisan momentum” moving through the process. “And it has growing support from young people who’ve seen Big Tech’s destruction, parents who’ve lost children, mental health experts, and public interest advocates.” Despite the claim of support, civil society groups are alarmed by KOSA. In a joint letter, some such groups expressed broad opposition to the passage of the bill because of what they highlight as a risk to personal data, privacy rights, and censorship of First Amendment-protected forms of expression on the internet. Organizations that signed the letter include the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Center for Democracy & Technology, LGBT Technology Partnership, and several others. The letter was transmitted to leadership in the House and Senate in December 2022, when a variation of the current KOSA was introduced. In November 2022, an initial letter was signed by a larger coalition of civil society groups, like the adult industry advocacy organization the Free Speech Coalition (FSC), and the Woodhull Freedom Foundation. That letter was transmitted to Senate Majority Leader Chuck Schumer, D-NY, and the leadership of the Senate Commerce, Science, and Transportation Committee. Sen. Maria Cantwell, D-WA, is the current chair of the committee and was the chair when the coalition featuring the FSC and Woodhull Freedom Foundation sent the letter expressing concern over KOSA. One of the central arguments in the letters is that KOSA could potentially harm minors rather than help, especially LGBTQ youth who are in need of certain information that they may not have access to through their real-life environments. “KOSA’s provisions may also unduly burden and even undermine the work of key institutions that serve minors, including schools,” indicates the November 2022 letter. The December 2022 letter adds concerns over one provision in the bill’s language pertaining to the enforcement of KOSA if it were to become law. State attorneys general will serve as the primary law enforcers, leading to a potentially non-uniform implementation of KOSA regulations state-to-state. The current form of KOSA has this provision built into its language. Under this provision, an attorney general would ultimately have the final say as to what is considered harmful to young people and what isn’t.  “KOSA could result in loss of access to information that a majority of people would agree is not dangerous,” argues Jason Kelley, the activism director at EFF, in a policy commentary on KOSA that was published in May 2023. “Under KOSA, could a platform be sued for displaying content about them—or about needle exchanges, naloxone, or other harm reduction techniques?” Kelley points out that an attorney general could ultimately issue regulations that classify certain types of information that are politically divisive as “harmful.” This type of material could come from an LGBTQ youth resource center or a non-governmental community health access group sharing messages on safe sex practices and women's reproductive health services.  With the state-level implementation of a law that is as broad as KOSA could be, the ideological aspect of an attorney general—of whom, most are elected in the United States—could significantly stunt access to information in that state that is otherwise accessible in others and is protected by the First Amendment. This could lead to negative implications for adult entertainment industry professionals and commercial sex work industry members in certain states. One thing to consider is the large concentration of adult entertainment-related work in Florida—especially in and around the Miami area. The current attorney general of Florida is a woman named Ashley Moody. She is a Republican and staunch supporter of right-wing governor and 2024 Republican presidential candidate Ron DeSantis. Moody is ideologically aligned with anti-pornography and anti-sex work groups that promote debunked talking points of the legal porn industry somehow being a hotbed for child sex trafficking. Moody is also a supporter of Moms for Liberty, a group that is recognized as an extremist, general-hate organization by the nonprofit Southern Poverty Law Center. If Moody was given the powers outlined in KOSA, the definition of what’s harmful to minors on social media and the internet could potentially be expanded in the state to include LGBTQ young adult literature, non-Christian religious material, and information related to mental and public health resources like comprehensive sexual education, free or low-cost condoms, and something as trivial as recreational marijuana legalization.  Another feature of the bill is that it allocates funding for executive branch agencies to conduct an economic analysis and a broad impact assessment on the implementation of a nationwide age verification regime for social media usage among minors. The bill also forces platforms to grant access to academic researchers and public interest organizations to conduct studies and analyses on the harms of social media through what bill sponsors refer to as “black box” algorithms. The “black box” algorithm is precisely what it sounds like; a fact sheet published by Blumenthal’s office states that the bill would require platforms covered by KOSA to openly provide “academic researchers and nonprofit organizations with access to critical datasets from social media platforms to foster research regarding harms to the safety and well-being of minors.” This type of provision is controversial because there is no agreed consensus on just the harms of social media alone. The American Psychological Association issued a mental health practice advisory in May 2023 that “using social media is not inherently beneficial or harmful to young people.” Or, that “not all findings apply equally to all youth.” There is no denying that further research is needed, but KOSA forcing a “one-size-fits-all” solution negates any evidence-based policymaking. Critics of KOSA point out that some states already have regulations in place similar to what is proposed in the bill. Utah Gov. Spencer Cox, a Republican, signed a set of bills that require age verification in order to have a social media account. For minors under the age of 18, the law is crafted in a way that requires government-issued identification or some sort of identifiable and verifiable documentation for a parent or guardian. This law entered into force with Utah’s age verification requirement to access pornography websites, which led to MindGeek blocking IP addresses from the state when users try to navigate to Pornhub or other MG-owned adult websites.