Today, TechFreedom sent a letter to the U.S. Senate Commerce Committee reiterating our concerns about the Kids Online Safety Act (KOSA). Last year, joined by leading Internet law and First Amendment scholars, we explained that KOSA would force platforms to age-verify their users and impose an undefinable and unmeetable duty of care—violating users’ First Amendment rights to anonymous expression and ensuring that minors will be cut off from information they are constitutionally entitled to receive. This year’s iteration of KOSA poses those same problems, only with slightly different words.

“Platforms will still have to age-verify users, violating their First Amendment right to speak and access content anonymously,” said Ari Cohn, Free Speech Counsel at TechFreedom. KOSA imposes obligations on platforms when it has “knowledge fairly implied” that a user is a minor, but provides no useful guidance on what circumstances will imply such knowledge. “The revisions made to KOSA just trade an explicit mandate for a vague one. Uncertainty about when knowledge of a user’s age will be implied leads to the same result as before: the only way a platform can be confident it is in compliance is by age-verifying every user. At best, language purporting not to require such verification ignores this practical reality. At worst, it is a deliberate obfuscation of the bill’s intended effect.”

“KOSA’s duty of care is an unfixable idea that is impossible to satisfy and a violation of the First Amendment,” Cohn continued. “Minors are not a monolith, and what hurts one may help another. Requiring platforms to protect the vague, nonexistent best interests of minors as a whole will limit minors to only the blandest material safe for the most sensitive individual. This chilling effect is the precise reason courts have consistently held for decades that imposing a duty to protect listeners from harmful reactions to speech is unconstitutional.”

“State attorneys general of all persuasions will find KOSA a useful tool in purging the Internet of content they disfavor,” Cohn concluded. “From hateful speech to LGBTQ content, KOSA’s duty of care provides the kind of ready-made censorship tool that ambitious attorneys general could only dream of. The burden and expense of a state investigation alone may be sufficient to pressure platforms to take down or restrict access to protected expression. Handing a weapon to politically motivated actors who have demonstrated that they will use any tools at their disposal to silence speech they disagree with is grossly irresponsible.”

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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. 

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