New KOSA, Same As Old KOSA, But Now With Elon’s Ignorant Endorsement

The censors are making a big push on the new version of “KOSPA,” which is the Kids Online Safety Act (KOSA) merged with a problematic privacy bill (hence the “P”). Over the weekend, Senator Marsha Blackburn — who directly admitted the point of the bill was to “protect minor children from the transgender [sic] in our culture” — released an updated version of the bill which has some cosmetic changes to try to pretend they’ve fixed the very real and widespread concerns regarding how the bill can be used by whichever party is in charge to censor content they dislike.

As we’ve discussed, the main issue with the bill is the “duty of care” section, which has vague terminology that will encourage companies to simply remove any controversial content, rather than have to fight in court after-the-fact about whether the content was “harmful” to kids. On top of that, the bill heavily encourages companies to embrace problematic age verification tools that have already been shown to be a privacy disaster.

The key changes in the new version of the bill are cosmetic, rather than substantial, designed to allow supporters of the bill to insist it won’t be used for censorship, even though it will be.

First, it adds a weird “reasonable and prudent person” standard, which wasn’t in the earlier version of the bill, even though it did have “exercise reasonable care.” Did they think that “reasonable care” didn’t already require use of the judicial fiction of the “reasonable person” standard before? All this amendment does is rephrase the same vague standard in a way that ignorant people might think makes a difference:

A covered platform shall exercise reasonable care in the creation and implementation of any design feature to prevent and mitigate the following harms to minors where a reasonable and prudent person would agree that such harms were reasonably foreseeable by the covered platform and would agree that the design feature is a contributing factor to such harms

Here’s the problem with this, which many people don’t seem to understand: to figure out what a “reasonable and prudent” person would do is an after-the-fact judicial analysis. That means that any time something bad happens online that works up enforcers into a frenzy, they will go after any website they dislike where said “bad thing” was discussed, and insist that the platform should have “prevented and mitigated” the bad thing.

Then the platform would need to go to court and spend roughly $5 million across three to four years to argue that the “bad thing” which was discussed (but didn’t actually happen on the platform) wasn’t “reasonably foreseeable.”

Most platforms aren’t going to want to do that. Instead, they’ll just remove all sorts of content that might otherwise lead to such a lengthy, draining, and resource-intensive legal fight (including all the negative headlines that will go along with it).

That’s why this is a censorship bill, first and foremost.

It’s particularly galling that Democrats are supporting this, especially given that the Republicans will have full control over Congress and the FTC (which gets to enforce this law) and the leading candidate to run the FTC has already made it clear that he’s eager to extend the powers of the FTC to launch costly and punishing vindictive investigations and campaigns to push forward MAGA culture wars.

The new version of KOSA now also includes a section which is particularly stupid, which just says “oh yeah, don’t use this to violate the First Amendment,” which doesn’t actually mean it won’t violate the First Amendment:

Nothing in this section shall be construed to allow a government entity to enforce subsection (a) based upon the viewpoint of users expressed by or through any speech, expression, or information protected by the First Amendment to the Constitution of the United States.

If your bill doesn’t violate the First Amendment, you don’t actually have to put into it “hey, don’t violate the First Amendment with the bill.” If anything, that new paragraph is an admission that of course the bill can and will be used to infringe on First Amendment rights.

Along with the release of the new bill, we had ExTwitter CEO Linda Yaccarino come out saying she supported it:

Yaccarino’s support for KOSPA seems misguided and hypocritical. If “protecting our children” is the top priority, why did her boss, the owner of the site, directly reinstate an account of a conspiracy theorist who shared horrific child sexual abuse material?

Of course, during a Congressional hearing earlier this year, Yaccarino had also come out in support of KOSA, though it seemed pretty clear she had no idea what it was. At the time she claimed she wanted to “make sure it accelerates” and “make sure it continues to offer community for teens that are seeking that voice.” That is someone who has no idea what they’re talking about.

But it sounds like some politicians pounced on this and used it as an opportunity to roll this naive and foolish CEO into supporting a bill that is going to cause trouble for a site as poorly managed and moderated as ExTwitter. And, of course, Elon Musk also came out in support:

Except, of course, this bill does nothing to actually protect children. All it does is create massive liability for any website (including ExTwitter) that allows any content that can later be claimed to be “harmful to children.”

This really feels like a replay of that time two and a half years ago when a very naive and easily rolled Elon endorsed the EU’s Digital Services Act. Of course, then the EU used the DSA to kick off a big investigation into the company, which eventually led to Elon telling the very same official who had totally played Elon to get that endorsement to go “fuck your own face.”

It wouldn’t surprise me at all to see the same thing play out here. If KOSA does pass, with Elon’s endorsement, and then when the KOSA lawsuits start showing up against ExTwitter, you can bet he’s going to complain about how awful and unfair it all is.

Either way, it’s yet another example of how claims by Elon and Yaccarino to be “free speech absolutists” are absolute bullshit. This law is extremely censorial.

Indeed, Rand Paul, who has repeatedly explained the problems of the bill in very clear terms, was at it again this weekend, calling it “such a dire threat to our First Amendment rights….”

Of course, Elon’s tweet about it has a bunch of flag-waving accounts screaming ridiculously about how ExTwitter is “the free speech site that protects kids” when neither is true.

Crucially, with very little time remaining in the current Congressional session, the window for passing KOSPA is rapidly closing. While there is a push from some Senators to get the House to vote on the bill, according to Congressional staffers I spoke with, House Republican leadership has remained cool to the idea so far. The tight timeline means that unless something changes dramatically, KOSPA is unlikely to advance before the end of the year. Because of this, opponents of the bill should focus their advocacy efforts on persuading House leaders to keep KOSPA off the agenda in the remainder of the session.

While Musk, Yaccarino, and KOSPA’s bipartisan supporters in Congress may claim to be protecting children, their misguided proposal would actually undermine free speech and privacy online without effectively improving child safety. Don’t let the “think of the children!” appeals fool you. Lawmakers must reject KOSPA’s flawed approach and defend Americans’ constitutional rights.