WASHINGTON — The main U.S. Senate sponsors of the controversial Kids Online Safety Act (KOSA) have released a new version of the bill, which they claim addresses privacy and censorship issues flagged by opponents, but critics insist the revised version still presents insurmountable problems.
For the past two years, KOSA has been marketed as a bipartisan effort, with Senators Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee) selling it to their colleagues as a “protect the children” measure.
In a scathing 2022 editorial, Jason Kelley of leading digital rights organization Electronic Frontier Foundation argued that behind its kid-friendly name and supposed mission, KOSA hides “a plan to require surveillance and censorship of anyone 16 and under.”
The bill, Kelley noted, would actually “greatly endanger the rights, and safety, of young people online” while also chilling controversial speech — including sexual expression — across the internet.
Today, Blumenthal and Blackburn released a self-congratulatory statement accompanying the revised version of KOSA, celebrating “growing U.S. Senate support for the bill, with a total of 62 senators now cosponsoring the legislation” and claiming the bill has new supporters among stakeholder groups and that “several changes have been made to strengthen the legislation and ensure it becomes law.”
“This overwhelming bipartisan support for the Kids Online Safety Act — 62 total co-sponsors, Democrats and Republicans — reflects the powerful voices of young people and parents who want Congress to act,” the two senators stated. “The recent watershed hearing with Big Tech CEOs showcased the urgent need for reform. With new changes to strengthen the bill and growing support, we should seize this moment to take action. We must listen to the kids, parents, experts, and advocates, and finally hold Big Tech accountable by passing the Kids Online Safety Act into law.”
Blumenthal and Blackburn also listed groups they say now support KOSA, including the NAACP, Nintendo of America, Christian Camp and Conference Association, Microsoft, The Foundation United, Parents for Safe Online Spaces, Snap, Street Grace and X.
According to the Washington Post, following the changes unveiled Thursday, the Senate is now poised to pass KOSA, which the paper calls “the biggest piece of tech regulation in decades.”
The Post reported that Blumenthal’s office “released a letter from more than a half-dozen LGBT rights groups rescinding their opposition to the measure due to the changes. The groups, which include GLAAD and the Human Rights Campaign, said the adjustments lawmakers made to KOSA ‘significantly mitigate the risk of it being misused to suppress LGBTQ+ resources or stifle young people’s access to online communities.’”
Sources familiar with Congress protocol consulted by XBIZ pointed out that in legislative parlance, “rescinding opposition” does not equal “endorse” or “support.” However, Blumenthal’s office appears to be blurring that distinction in relation to some of the LGBTQ+ groups that previously actively opposed KOSA.
Last fall, Blackburn “caused alarm among some transgender advocates when she said ‘protecting minor children from the transgender in this culture’ should be a top priority for lawmakers in a video in which she also praised KOSA,” NBC News’ Kat Tenbarge reported in December.
As XBIZ reported, Blackburn’s statements about how conservative DAs might apply KOSA in the future to chill free speech around sexual issues and LGBTQ+ education align with the activism track record of NCOSE, Parents Television and Media Council, Citizens for Decency and other religious and cultural conservative groups that co-signed a letter in support of the previous version of KOSA.
Opposition to New Version of KOSA Persists
On Thursday, digital rights group Fight for the Future, which has helped mobilize opposition to provisions in the bill, issued a statement signed by its director, Evan Greer.
“Fight for the Future and the coalition of dozens of human rights, LGBTQ, racial justice and civil liberties groups that have been raising concerns about KOSA for months are still assessing the latest version of the bill,” Greer wrote. “Unfortunately, the bill’s sponsors did not include us in discussions about changes and would not share the text with us despite repeated requests.”
Greer noted with approval that the attorney general enforcement clauses had been narrowed.
“We agree that this will somewhat reduce the immediate likelihood of KOSA being weaponized by politically motivated AGs to target content that they don’t like,” she wrote. “We also appreciate that it seems an attempt was made to limit the Duty of Care to design features. However, by not clarifying that the Duty of Care only applies in a content neutral manner, as we have asked, it still invites the harms that we’ve warned about.”
The fundamental problem with KOSA, Greer explained, is that “its duty of care covers content-specific aspects of content recommendation systems, and the new changes fail to address that. In fact, personalized recommendation systems are explicitly listed under the definition of a design feature covered by the duty of care. This means that a future Federal Trade Commission (FTC) could still use KOSA to pressure platforms into automated filtering of important but controversial topics like LGBTQ issues and abortion, by claiming that algorithmically recommending that content ‘causes’ mental health outcomes that are covered by the duty of care like anxiety and depression.”
As long as KOSA’s duty of care covers content recommendation systems without a limitation to ensure it can only be applied to content-neutral design choices, she added, “platforms will be likely to react the same way that they did to the broad liability imposed by SESTA/FOSTA: by engaging in aggressive filtering and suppression of important, and in some cases lifesaving, content.”
“We unfortunately must remain opposed to KOSA at this time because we still believe it would do more harm than good unless it is amended further,” Greer concluded.
FSC Also Concerned About Revamped KOSA
Free Speech Coalition Director of Public Affairs Mike Stabile told XBIZ that since adult sites “are not targeted at minors and already take precautions like age gates to keep minors from accessing them, they would likely be outside the scope of KOSA.”
However, under the revised legislation, Twitter and social media sites may still need to take steps to maintain the standards of a duty of care, Stabile added.
“That does not mean that all content on the site need to be appropriate for all ages or that social media sites need to age-verify to meet those standards,” he explained, adding that “the Supreme Court and numerous state and federal courts have been clear that, whether it’s adult content or social media content, the internet does not need to reduce itself to a safe space.
“There are, and should be, tools at the platform and device level to help limit minors’ access to adult content, but mandating platforms targeted at adults to censor the speech of their users to meet an arbitrary standard is irrational and unconstitutional,” Stabile stated. “We will continue to work to educate legislators and platforms as to common-sense ways to keep minors from accessing adult content.”
Industry Attorneys Weigh In, Urge Action
Industry attorney and free-speech specialist Lawrence Walters, of Walters Law Group, explained that KOSA “would give the government new powers to interfere with the First Amendment rights of online platforms generally, threatens anonymous speech and incentivizes adoption of age verification for all users.”
The bill would also “burden access to adult materials by adults and is constitutionally suspect,” he added, and urged anyone who cares about online freedom to voice opposition to the bill.
“Congress has put substantial pressure on social media sites to accept government regulation, so it is no surprise that some large platforms are bowing to that pressure — just as they did when it came to FOSTA / SESTA,” Walters noted. “The time to speak out is now.”
Fellow industry attorney Corey Silverstein, of Silverstein Legal, told XBIZ he is not surprised to see “the resurgence of KOSA and the support it’s receiving, given the present state of the government when it comes to free speech and the anti-adult industry climate.
“KOSA undoubtedly walks all over the First Amendment and the time is now to get organized to stop this horrible bill,” he added.
Main Image: Leading KOSA proponent Senator Richard Blumenthal (D-Connecticut)
