The internet landscape has drastically evolved since 1998, the year Congress last enacted legislation to safeguard children online. Before the rise of social media giants like Facebook, the advent of the iPhone, and the digital immersion of today’s teenagers, the digital world was a vastly different place. Recognizing this gap, the Kids Online Safety Act (KOSA) has emerged as a significant bipartisan effort to modernize online child protection. Recently passing the Senate with strong support, KOSA aims to shield children from the documented harms prevalent on social media, gaming platforms, and various online services. While its future in the House remains debated, President Biden has signaled his willingness to sign KOSA into law if it reaches his desk.
Advocates for the Kids Online Safety Act include a diverse coalition of parents’ organizations, child advocacy groups, and even tech industry players like Microsoft, X, and Snap. They argue that KOSA represents a crucial initial step towards responsible tech regulation. This legislation seeks to compel online platforms to proactively protect young users from harmful content and acknowledge their responsibility in mitigating potential harm caused by their platforms.
Conversely, opponents of KOSA raise concerns about potential infringements on First Amendment rights. They also worry about unintended consequences for vulnerable youth, who might lose access to vital information, particularly concerning LGBTQ+ issues and reproductive rights. Although revisions have been incorporated into the bill to address many of these concerns, leading to a softening of opposition from major LGBTQ+ advocacy groups, debates surrounding free speech and potential censorship persist.
This article delves into the key aspects of KOSA, exploring its provisions, the mechanisms for its enforcement, the diverse groups supporting and opposing it, and the current outlook for its potential enactment.
What Exactly Does KOSA Aim to Do?
At its core, the Kids Online Safety Act seeks to establish a “duty of care” for online platforms frequented by minors. This legal principle mandates that these companies must implement reasonable measures to actively prevent and mitigate harm to children.
Specifically, KOSA outlines a range of harms that platforms must address, including:
- Bullying and online harassment
- Exposure to violence and violent content
- Promotion of suicide and self-harm
- Content related to eating disorders
- Substance abuse and drug-related content
- Sexual exploitation and child sexual abuse material
- Advertisements for illicit products like narcotics, tobacco, and alcohol
To achieve these preventative measures, social media platforms and similar online services would be obligated to provide minors with specific safeguards. These include options to control their personal information, disable features designed to be addictive, and opt-out of algorithm-driven personalized recommendations. Furthermore, platforms would need to implement restrictions on adult users contacting minors and limit functionalities that are designed to “increase, sustain, or extend the use” of the platform – features like autoplay videos or platform reward systems. The overarching principle is that online platforms must default to the safest possible settings for accounts identified as belonging to minors.
“Many of the dangers young people face online and on social media stem from deliberate design choices made by these tech companies,” emphasizes Josh Golin, Executive Director of Fairplay, a non-profit organization dedicated to protecting children from commercialization, marketing, and harms stemming from Big Tech. This perspective underscores the belief that KOSA is necessary to address systemic issues embedded within platform design.
How Would the Kids Online Safety Act Be Enforced?
The enforcement mechanism of KOSA has been a subject of significant discussion and revision. An earlier version of the bill proposed empowering state attorneys general to enforce the “duty of care” provision. However, this aspect sparked considerable concern from LGBTQ+ organizations and civil liberties advocates, who feared that state attorneys general might misuse this authority to censor content related to LGBTQ+ issues or reproductive rights based on differing political viewpoints. In the revised version of KOSA that ultimately passed the Senate, state attorneys general retain the power to enforce provisions of the act, except for the “duty of care” standard.
The primary enforcement responsibility for the “duty of care” and broader compliance with KOSA would fall to the Federal Trade Commission (FTC). The FTC would be tasked with overseeing and defining what types of online content are deemed “harmful” to children within the context of the legislation. This federal oversight aims to provide a more consistent and potentially less politically influenced enforcement of the law compared to decentralized state-level enforcement of the “duty of care”.
Who Are the Supporters of KOSA?
The Kids Online Safety Act has garnered support from a wide spectrum of organizations and individuals deeply concerned about child safety in the digital age. These include numerous non-profit organizations, tech accountability groups, parent-led movements, and prominent pediatric and educational bodies. Key supporters include:
- American Academy of Pediatrics
- American Federation of Teachers
- Common Sense Media
- Fairplay
- The Real Facebook Oversight Board
- NAACP
Beyond advocacy groups, some prominent technology companies have also publicly endorsed KOSA, signaling a potential shift within the tech industry towards greater responsibility for child safety. Notable tech companies in support include Microsoft, X (formerly Twitter), and Snap.
ParentsSOS, a collective of approximately 20 parents who have tragically lost children to harms linked to social media, has been a vocal and passionate advocate for KOSA’s passage. Julianna Arnold, a member of ParentsSOS, whose 17-year-old daughter passed away in 2022 after obtaining fentanyl-laced drugs through Instagram, poignantly articulates the need for the legislation.
“We should not bear the entire responsibility of keeping our children safe online,” Arnold stated. “Every other industry has been regulated, from toys to movies to music to cars – regulations exist to protect our children. This [social media] is a product they have created and distributed, and yet for decades, since the 1990s, there has been no legislation regulating this industry.” Arnold’s statement highlights a central argument of KOSA proponents: that the tech industry should be held to similar safety standards as other industries that interact with children.
Who Are the Opponents and What Are Their Concerns?
Despite its bipartisan support and backing from various groups, the Kids Online Safety Act faces significant opposition from civil liberties organizations, digital rights advocates, and some segments of the tech industry. Organizations like the ACLU (American Civil Liberties Union), the Electronic Frontier Foundation (EFF), and others championing free speech have voiced strong concerns that KOSA, even in its revised form, could violate the First Amendment.
The Electronic Frontier Foundation, even after revisions to the bill, has characterized it as a “dangerous and unconstitutional censorship bill that would empower state officials to target services and online content they do not like.” While the revision removed state AG enforcement of “duty of care”, EFF’s statement refers to other enforcement powers retained by state AGs.
Kate Ruane, Director of the Free Expression Project at the Center for Democracy and Technology, echoes these concerns. She remains worried that the “duty of care” provision, even with FTC enforcement, could be “misused by politically motivated actors to target marginalized communities like the LGBTQ population and just politically divisive information generally,” under the guise of protecting children’s mental health.
Ruane further elaborated that platforms, fearing lawsuits for hosting content deemed “politically divisive,” might proactively suppress discussions on sensitive topics such as abortion, transgender healthcare, or even global events like the conflicts in Gaza or Ukraine. This potential for self-censorship by platforms to avoid legal risk is a key concern for opponents.
NetChoice, a tech industry trade group whose members include major platforms like Meta, Google, and X, is also a vocal opponent of KOSA. NetChoice has actively challenged similar state-level laws in court, securing four injunctions against them.
Referencing a California law aimed at online child safety, Carl Szabo, NetChoice’s Vice President and General Counsel, points to a federal judge’s ruling that halted its implementation following a NetChoice challenge. U.S. District Judge Beth Labson Freeman wrote in her ruling that, “The State has no right to enforce obligations that would essentially press private companies into service as government censors.” This ruling underscores the constitutional concerns raised by KOSA opponents regarding government overreach and censorship.
Szabo argues that while the intentions behind KOSA are laudable, it “fails to meet basic constitutional principles and fails parents because it won’t make a single child safer online or address their concerns.” He contends that KOSA undermines parental authority and choice while potentially forcing users to relinquish personal information to access online speech.
What Is the Future Outlook for KOSA?
The immediate future of the Kids Online Safety Act hinges on its progression through the House of Representatives. While House Speaker Mike Johnson has expressed commitment to finding consensus on the issue of online child safety, he has remained non-committal regarding bringing KOSA to a House vote. The legislative calendar is also a factor, with the current congressional session concluding in January. For KOSA to become law in this session, it would need to pass the House in the coming months.
However, a significant factor boosting KOSA’s prospects is President Biden’s strong endorsement. In a public statement urging House passage, President Biden emphasized the urgent need for congressional action to “protect our kids online and hold Big Tech accountable for the national experiment they are running on our children for profit.” This presidential support signals a high likelihood of Biden signing KOSA into law should it successfully navigate the House.
The Kids Online Safety Act represents a significant attempt to modernize online child protection laws for the contemporary digital age. While facing complex debates regarding free speech and potential unintended consequences, KOSA reflects a growing societal consensus on the need for greater accountability from online platforms in safeguarding children in the digital sphere.
