Dangerous "Kids Online Safety Act" Does Not Belong in Must-Pass Legislation

Every year, Congress must follow through on an enormous and complicated task: agreeing on how to fund the government for the following year. The wrangling over spending often comes down to the wire, and this year, some Senators are considering shoehorning a controversial and unconstitutional bill, the Kids Online Safety Act (KOSA), into the must-pass legislation. Make no mistake: KOSA is bad enough on its own, but putting KOSA into the “omnibus package” is a terrible idea. 

Amendments Aren’t Enough

The bill’s sponsors have made last-minute changes to the bill in an attempt to assuage concerns, but these edits don’t resolve its fundamental problems. We’ve spoken about the harms KOSA will cause at length, and they remain in the current version. 

To recap: KOSA’s main provision contains the vague requirement that online services act “in the best interests of a user that the platform knows or should know is a minor,” by taking “reasonable measures” to prevent and mitigate various enumerated harms. These harms include mental health disorders, including (to name a few) the promotion or exacerbation of suicide, eating disorders, and substance use disorders; physical violence, online bullying, and harassment of the minor; and sexual exploitation and abuse.  

KOSA’s latest text still contains this glaring and unconstitutional flaw at its core. 

There is no doubt that this content exists on the internet and that it can be harmful. But as we’ve written, there is no way a platform can make case-by-case decisions about which content exacerbates, for example, an eating disorder, compared to content which provides necessary health information and advice about the topic. As a result, services will be forced to overcensor to ensure young people—and possibly, all users, if they aren’t sure which users are minors—don’t encounter any content on these topics at all. 

KOSA’s latest text still contains this glaring and unconstitutional flaw at its core. That’s why we continue to urge Congress to not pass it. And Senators should not consider the largest change—the addition of a new “limitations” section—a solution to any of the bill’s problems. The new language reads:

Nothing in subsection (a) shall be construed to require a covered platform to prevent or preclude any minor from deliberately and independently searching for, or specifically requesting, content.

The new “limitation” section is intended to wave away KOSA’s core problem by giving online services an out. But instead, it creates a legal trap. The bill still creates liability for any service that delivers the content to the user, because at root, if the service is aware the user is a minor—or should know, in the language of the bill—the service is still on the hook for any content presented that is not in the user's “best interest.” This new language just begs the question: How can a site provide general information that a minor “deliberately and independently” searches for or finds on their services without that site then acquiring some knowledge that minors are looking at the information? Simply put: They cannot. This language just puts a fig leaf over the problem. 

One interpretation of the new “limitation” could be that KOSA creates liability only when platforms deliver the content to minor users who aren’t seeking it, rather than those who are seeking it. This may be a subtle way to go after “algorithmically-presented” content, such as videos recommended by YouTube. But that’s not what the law actually says. Who knows what “independently” means here?  Of what or whom?   If a minor finds a site through a search engine, or if a covered platform provides a list of URLs for minors, was that an “independent” search? A law that claims it doesn’t censor content because people can still search for it is fundamentally flawed if the bill also says that services cannot deliver the content. 

In its latest form, this bill still lets Congress—and through the bill's enforcement mechanism, state Attorneys General—decide what’s appropriate for children to view online. The result will be an internet that is less vibrant, less diverse, and contai