May 28, 2024
The digital realm has become a second home for America’s teens, allowing them to connect with friends and family, complete homework, and catch up on world events. While this connectivity has provided immense benefits, some argue that unfettered access has led to a rise in addiction, depression, and anxiety. These concerns have spurred the introduction of over 200 state-level bills aimed at safeguarding children online.
While most of the legislative activity has been at the state level, federal lawmakers have been pushing to quell these fears through their own measures. In February, Senator Richard Blumenthal (D-CT) reintroduced the Kids Online Safety Act (KOSA). Originally brought forward in 2022 with the support of Tennessee’s Marsha Blackburn (R), this revised bill aims to address the ongoing concerns surrounding youth online safety. The bill has garnered immense support, with 68 cosponsors in the Senate and 11 in the House of Representatives.
If enacted, KOSA would create a “duty of care” for social media platforms, compelling them to shield minors from perceived harms caused by social media, such as depression, anxiety, and eating disorders. While well-intentioned, KOSA contains privacy and constitutional pitfalls that risk censorship of vital resources for America’s youth and threaten the First Amendment rights of all Americans.
KOSA would mandate platforms to protect minors from harm, but KOSA’s instructions for how platforms should protect against “harmful” content are incredibly vague. For example, platforms are directed to “take reasonable measures in the design and operation of any product, service, or feature” but are provided no further clarification of how to do so. Consequently, platforms would be incentivized by vague language to broadly censor speech out of fear of liability for disseminating potentially “harmful” content. Such censorship could include blocking portions of health and educational content and cutting off access to information for the very groups KOSA aims to protect.
Furthermore, for platforms to fulfill their duty of care and implement KOSA’s prescribed safeguards for minors, they must first verify the ages of all users. Although the new legislation claims it does not mandate age verification, Ari Cohn and Berin Szóka of Tech Freedom explain, “changes [to KOSA] merely trade a clear, explicit mandate [to verify ages] for a vague, implicit one; the unconstitutional effect on anonymous expression will be the same.” Despite policymakers’ assertions, KOSA’s opaque instructions and hefty fines encourage platforms to implement age verification to avoid liability.
Therefore, to access content under KOSA, all users will likely have to hand over some form of personal information including a government-issued ID, biometric scans, or sensitive user data. This wouldn’t just affect kids, as platforms must verify the ages of all users to isolate which users are minors. In the process of protecting children, age-verification methods would suppress protected adult speech by creating barriers for users to express their free ideas and denying users the right to browse anonymously. The Supreme Court has repeatedly protected this right to free and anonymous expression, meaning KOSA’s provisions could pose significant challenges should Congress enact the bill.
Although the means of dispersing this speech has changed since the court’s initial rulings, the foundation of Americans’ right to free and anonymous speech would similarly make age verification measures unconstitutional today.
Moreover, to avoid collecting IDs and facial scans, KOSA’s duty of care can push platforms to gather more sensitive information about their users to estimate their age, creating additional privacy concerns. Forcing third-party companies to collect sensitive information can create targets for bad actors, threatening the privacy of nearly 250 million Americans. In a recent data breach of Outabox, an Australian company that scanned faces and IDs to enter bars and nightclubs, over 1 million people’s personal information “including names, addresses, and driver’s license” were compromised. The push for constitutionally perilous child safety legislation overshadows the fruitful progress made at the state level. States like Florida and Virginia have enacted constitutional legislation to educate America’s teens about safe social media use. Instead of relying on flawed and unconstitutional measures, lawmakers should continue investing in comprehensive digital literacy education, empower parents with more nuanced control tools, and foster innovation that respects children’s safety and constitutional rights.
