WASHINGTON—The Congressional Research Service (CRS), the legislative branch's research think tank, released a new report Monday characterizing the Kids Online Safety & Privacy Act (KOSPA) as a means to require age verification on websites considered potentially harmful to minors. This is the latest report from the CRS warning members of Congress that legislation like KOSPA could face strong constitutional headwinds.
The original U.S. Senate bill known as the Kids Online Safety Act (KOSA) was rolled up in a legislative package with the Children and Teens' Online Privacy Protection Act (COPPA 2.0) to form KOSPA, which was adopted by the Democrat-controlled Senate on a vote of 91-3.
Clare Y. Cho, PhD., an economist trained at Ohio State University and an analyst in industrial organizations for the CRS, wrote in the new report that KOSPA would require aggressive actions for platforms to comply. The report is titled "In Focus: Kids Online Safety Act."
"If [KOSPA] were enacted, some of the requirements might be subject to legal challenges," Cho explains. "Some groups have argued that certain provisions might violate rights protected by the Free Speech Clause of the First Amendment.
"Recent state laws enacted to protect children online have been similarly subject to First Amendment challenges," she adds, citing federal lawsuits such as the U.S. Supreme Court taking up Free Speech Coalition et al. v. Paxton, which challenges controversial Texas House Bill (HB) 1181, next court term.
Cho notes that to achieve the design requirements to comply with KOSPA, regulated platforms would be required to essentially implement age-gating and age-verification measures or completely change their user experience and functionality. Regulated platforms under KOSPA would virtually encompass all web platforms. These include social media networks, online video gaming communities, video streaming websites, and adult entertainment websites.
"Some operators might use different age verification methods to identify minors on their platforms, while others might implement changes for all users," explained Cho. "Some of the requirements might make it more costly to operate platforms. For example, implementing a reporting mechanism and hiring a third-party auditor to evaluate the risk prevention and mitigation efforts taken by the platform might be costly ... for those with limited resources."
These observations run counter to what proponents of KOSA and its KOSPA variation have claimed. Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., introduced KOSA, which received quite a bit of bipartisan support from members. Blumenthal and Blackburn have maintained throughout their campaign of pitching KOSA to members of the Senate that there is no requirement to establish age verification on web platforms. The only mention of age verification in the legislation is that it would ask the Secretary of Commerce, the Federal Trade Commission, and the Federal Communications Commission to investigate the feasibility of national age verification rules.
However, KOSPA would require virtually all major web platforms to adopt age-appropriate designs in order to fulfill the proposed duty of care. The duty of care in the bill requires the parent companies of the web platforms to create user experiences that protect minors from being exposed to content that is potentially harmful, including materials that promote violence, self-harm, depression, or could lead to unlawful sexual imagery and sexual exploitation.
Essentially, KOSPA would require a much higher degree of content moderation that could see otherwise legal forms of expression censored to comply with the law. It also doesn't help that Sen. Blackburn told a religious conservative organization that KOSA could be used to protect minors from being exposed to material that promotes "transgenderism." Despite having walked that back and Sen. Blumenthal building the bridge for LGBTQ+ stakeholder groups to drop their opposition to the bill, it still worries civil society organizations like Fight for the Future and the American Civil Liberties Union (ACLU).
Both groups have come out in opposition to age verification laws in the past. ACLU attorneys currently represent the Free Speech Coalition and the parent companies of the world's largest adult websites in the case before the Supreme Court challenging Texas HB 1181. While that is certainly a noteworthy detail, the ACLU's opposition to KOSA has never waned because it fears such a bill could restrict freedom of expression on the internet. Considering all of this, Cho's report adds a completely different dimension to the narrative that KOSPA doesn't "force" age verification. It is worth pointing out that KOSPA ultimately would force a web platform that is otherwise lawfully operating to adopt some sort of risk mitigation, and those options for risk mitigation include artificial intelligence-powered age estimation scans, ID and consumer database checks, as well as other related measures.
