Today, Senators Richard Blumenthal and Marsha Blackburn reintroduced the dangerously misguided “Kids Online Safety Act,” (KOSA) after failing to pass it in the previous Congress.
“KOSA’s sponsors seem determined to ignore repeated warnings that KOSA violates the First Amendment and will in fact harm minors,” said Ari Cohn, Free Speech Counsel at TechFreedom. “Their unwillingness to engage with these concerns in good faith is borne out by their superficial revisions that change nothing about the ultimate effects of the bill.”
Last December, TechFreedom and more than a dozen leading First Amendment and Internet law scholars wrote to congressional leadership detailing these concerns. Our letter explained that mandating protections for minors would necessarily require platforms to age-verify all users—an outcome that is clearly unconstitutional under decades of established precedent. KOSA 2.0 attempts to evade the problem by limiting its effects to instances where a platform knows “or reasonably should know” that a user is a minor.
“KOSA 2.0 raises more questions than it answers,” Cohn continued. “What constitutes reason to know that a user is under 17 is entirely unclear, and undefined by the bill. In the face of that uncertainty, platforms will clearly have to age-verify all users to avoid liability—or worse, avoid obtaining any knowledge whatsoever and leave minors without any protections at all.”
Our letter also explained that KOSA’s duty of care, untethered from the First Amendment, is unworkable and will cause platforms to cut minors off from beneficial—and constitutionally protected—information, including harm reduction content. The new language purports to allow minors to search for any content they want, and permits platforms to allow minors to access “prevention or mitigation” content—but the problem remains exactly as it was.
“The premise of a duty of care itself is fundamentally flawed,” Cohn continued. “Platforms can let minors request certain content, but under KOSA 2.0 they remain liable for any harm caused by allowing minors to see that content. Each user experiences content differently, and platforms cannot granularly determine whether content is harmful or preventative with any meaningful precision. The most ‘reasonable’ and risk-averse course remains to block minors from accessing any content related to disfavored subjects, ultimately to the detriment of our nation’s youth.”
Unchanged from last year’s bill is the unconstitutional requirement that platforms collect parental “acknowledgment” before a user under the age of 17 is permitted to use their account. As TechFreedom explained to Utah Governor Spencer Cox, minors have substantial First Amendment rights, which cannot be conditioned on the prior parental consent of a parent.
“Lipstick cannot save this pig,” Cohn concluded. “KOSA remains a ham-fisted approach that will do much more harm than good, and make the Internet worse for everyone.”
Find this release on our website, and share it on Twitter, Bluesky and Mastodon. We can be reached for comment at email@example.com. Read our related work, including:
- Closing the Digital Frontier, City Journal (Mar 7. 2023)
- Our letter expressing First Amendment concerns over two Utah bills (Feb. 16, 2023)
- Our comments to the FTC on a child engagement rulemaking petition (Jan. 18, 2023)
- Tech Policy Podcast #335: Is Screen Time Bad for Kids? (Jan. 11, 2023)
- Our letter on the Children and Teens’ Online Privacy Protection Act (S. 1628) (Dec. 6, 2022)
- Our letter on why the Kids Online Safety Act will make the Internet less safe for children (Dec. 6, 2022)
- Our comments to the FCC on protecting kids from stealth advertising in digital media (Nov. 18, 2022)
- Our coalition letter explaining the harmful effects of the EARN IT Act of 2022 (Mar. 3, 2023)
- The Top Ten Mistakes Senators Made During Today’s EARN IT Markup Techdirt (Feb. 10, 2022)
- Our letter proposing five amendments to the EARN IT Act of 2022 (Feb. 8, 2022)
TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.