Update 11/7/23: Today’s hearing unfolded mostly as expected, but in a significant moment Senator Welch (D-VT) said that he had been receiving a lot of “letters from folks in LGBTQ community, concerned that KOSA would compromise their ability to gather online,” and lifting up the ongoing concerns about how legislation in this area could cut queer and trans young people off from lifesaving online community. He also said he wanted to make sure that legislation does not undermine encryption (clearly a swipe at the EARN IT Act and STOP CSAM Act.) Senator Welch has not previously spoken out about KOSA, so this sends another strong message to Senate Leadership that the bill is not ready to go to the floor unless major changes are made.
Tomorrow, the Senate Judiciary Committee Subcommittee on Privacy, Technology and the Law will hold a hearing on “Social Media and the Teen Mental Health Crisis.” The hearing will reportedly feature testimony from Arturo Bejar, a new whistleblower who has come forward to shine light on Meta’s failure to respond to internal information about harms to young people on the platform. Fight for the Future applauds Mr. Bejar’s act of bravery. The more the public knows about the predatory and manipulative business practices of Big Tech giants, the better.
Unfortunately, the hearing will be used to promote the Kids Online Safety Act (KOSA), a dangerous bill that would fail to address the harms of Big Tech while posing a significant threat to human rights, free expression, and particularly the safety of LGBTQ youth. Last week, LGBT Tech organized a new letter signed by 74 LGBTQ organizations, explaining why the changes that have been made to KOSA fail to address concerns about how the bill can and will be weaponized against LGBTQ youth. As it currently stands, KOSA still allows state attorneys general to force platforms to censor content for younger users simply by claiming that content causes depression or anxiety.
Digital rights group Fight for the Future issued the following statement, which can be attributed to the groups’ director, Evan Greer (she/they):
“KOSA raises serious substantive concerns. But it’s also politically unfeasible. It faces opposition from dozens of human rights, LGBTQ, civil liberties, racial justice, and press freedom organizations, as well as high profile members of the House and Senate. Instead of being used to promote a misguided and ultimately unworkable bill, Arturo Bejar’s testimony should light a fire under lawmakers to stop grandstanding and start actually legislating. That means abandoning flawed and unconstitutional proposals like KOSA, the EARN IT Act, and the Protecting Kids on Social Media Act and working to advance measures that will actually address the harms of Big Tech. KOSA and similarly misguided bills won’t work, and they’re not going to pass. But Congress can and should advance privacy, antitrust and algorithmic justice legislation, and the FTC should use its existing authority to crack down on Big Tech’s manipulative and deceptive business practices like autoplay, infinite scroll, surveillance advertising, and intrusive notifications.
Under the First Amendment, the government can’t tell platforms which content they can and can’t recommend to which users. But lawmakers and regulators can address harms by targeting the commercial surveillance that powers algorithmic recommendations. The more time wasted debating KOSA, the less time Congress will have to consider meaningful proposals that can address the harms of Big Tech without triggering a constitutional challenge or throwing marginalized people under the bus.
Time is running out. If a few big egos in DC insist on pushing a misguided and unworkable bill, they’re going to squander the momentum that advocates have worked so hard to build toward meaningful regulation of Big Tech. If KOSA supporters really care about protecting kids, it’s time for them to start acting like adults. That means genuinely listening to the concerns raised by civil liberties and LGBTQ experts about how the duty of care model and content filtering requirements are fundamentally unworkable. It means working in good faith to identify areas of consensus, where child protection, human rights, and civil liberties experts all agree.
KOSA’s duty of care could be removed and replaced with a set of strict privacy rules and a ban on the use of minor’s personal data to power recommendation algorithms, for example. That could accomplish many of the bill’s stated goals without raising the same civil liberties and human rights concerns. If KOSA supporters continue to plug their ears and ignore the life or death concerns that have been raised about their bill, we all know what will happen: Congress will do nothing, and Big Tech will win again.”
Fight for the Future hopes to break the impasse on kids safety legislation by helping build consensus between civil liberties and child protection organizations. Toward that end, we have prepared a memo on the ongoing concerns with KOSA and a memo on alternative measures that will actually protect kids online.