Revised Kids Online Safety Act is an Improvement, but Congress Must Still Address First Amendment Concerns

February 27, 2024 2:35 pm

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WASHINGTON – Last week, the authors of the Kids Online Safety Act (KOSA) released a revised version of the bill aimed at addressing prior concerns with government censorship of speech and misuse of this bill’s provisions by state attorney generals to target marginalized communities.

The American Civil Liberties Union commends the bill’s authors for working to address child safety online and, in revising this bill, to reduce instances of government censorship, especially that which targets marginalized communities. However, the ACLU remains concerned that this bill would silence important conversations, limit minors’ access to potentially vital resources, and violate the First Amendment by imposing a roundabout government-mandated content moderation rule.

“At its core, KOSA is still an internet censorship bill that will harm the very communities it claims to protect,” said Jenna Leventoff, ACLU senior policy counsel. “The First Amendment guarantees everyone, including children, the right to access information free from censorship. We urge lawmakers to continue to amend this bill so the government is no longer the one determining what content is or is not fit for children.”

Specifically, the ACLU calls on the bill’s authors to uphold our First Amendment rights and address the following concerns:

Requiring or incentivizing age-verification chills speech for adults and minors

KOSA continues to require that platforms treat minors differently from adults, which could necessitate that platforms verify users’ ages. These age-verification schemes would not only impact minors, who could lose access to vital online resources, but also implicates the First Amendment rights of adults. Age verification threatens adult speech and online privacy by denying individuals the ability to browse the web anonymously, which may deter them from browsing at all. It also increases the risk that users’ personal identifying information may be subject to a data breach.

“Duty of Care” requirements still entice platforms to censor content

While the revised duty of care requirement purports to regulate “design features” instead of speech, the ultimate impact of this provision is still that platforms will censor protected speech for fear of being held legally liable. Because “design feature” is defined broadly, and includes everything from notifications to anything that increases the activity of minors on the platform, platforms are likely to censor anything they think kids would want to spend time on. The ACLU remains concerned the government’s attempts to regulate select design features will implicate First Amendment-protected speech.

Government interference in online speech is unconstitutional

KOSA remains a dangerous bill that would allow the government to decide what types of information can be shared and read online. While the revised bill no longer allows state attorneys general to enforce the duty-of-care provision, this bill continues to empower the Federal Trade Commission to take legal action against apps, websites, and other online platforms whose broadly-defined design features could cause harm to children. This risk of legal repercussions would still incentivize an enormous number of websites, apps, and online platforms to filter and block protected speech. The ACLU has long stated that this unconstitutional act of censorship will harm children by denying them access to basic health information and resources.

While the ACLU shares the laudable goal of protecting children, and appreciates the bill sponsors’ attempts to address our concerns, ultimately the revised version of KOSA still poses threats to our First Amendment rights.

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