WASHINGTON—The U.S. Senate on Tuesday advanced a controversial child online safety measure with bipartisan support to the House of Representatives. Senate Majority Leader Chuck Schumer, D-N.Y., heralded the passing of the Kids Online Safety and Privacy Act (KOSPA) as a measure to protect youth from "the risks of social media."
KOSPA is actually two bills combined into a singular legislative package: the Kids Online Safety Act (KOSA) and the Children and Teens’ Online Privacy Protection Act (COPPA 2.0). KOSPA, serving as a legislative vehicle to carry the child safety measures, passed the Senate's final vote, 91-3. Only three senators voted against the combined bill. Those "no" votes are Sens. Ron Wyden, D-Ore., Rand Paul, R-Ky., and Mike Lee, R-Utah. Wyden and Paul have echoed concerns held by civil society groups that KOSA's provisions, in particular, could harm free speech. Lee, a notorious anti-porn Republican, who has introduced legislation to classify all legal pornography as "obscene," said KOSA doesn't go far enough, citing his far more extreme SCREEN Act.
"I fear this bill could be used to sue services that offer privacy-enhancing technologies like encryption or anonymity features that are essential to young people’s ability to communicate securely and privately without being spied on by predators online," Wyden said in a press statement released in anticipation of KOSPA's vote. AVN reported on Wyden's concerns earlier this week when the Senate managed to advance KOSA and COPPA 2.0 through a procedural hurdle that queued up the official floor vote advancing the bills to the House. Sen. Wyden is one of the co-authors of Section 230 of the Communications Decency Act, frequently called the "First Amendment of the internet," alongside former Rep. Christopher Cox, R-Calif.
Sen. Paul, a conservative with the occasional libertarian streak, wrote in an op-ed on July 30 for the Louisville Courier Journal criticizing supporters of the bill. "KOSA supporters will tell you that they have no desire to regulate content," wrote Paul in the column. "But the requirement that platforms mitigate undefined harms belies the bill’s effect to regulate online content."
KOSA was initially introduced by Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., and was mired in debate and amendments for years. KOSA has undergone significant changes due, in part, to Blackburn's reputation for being extremely anti-LGBTQ+ and for going on record as wanting to use the law to censor material about transgender rights online.
This prompted initial opposition from groups like GLAAD and the Human Rights Campaign. However, after amendments were made, the two LGBTQ+ rights organizations withdrew their opposition. This hasn't convinced the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation, Fight for the Future, and many other organizations across the political spectrum.
Groups like the ACLU are concerned about the proposed duty of care, which would require social media companies to overhaul their platforms to be "safe by design" (in the words of Sen. Blumenthal during his floor speech urging the passage of KOSA). This means virtually all platforms would have to prevent and mitigate harm to users who are minors caused by social media use, such as limiting and outright blocking materials that might promote self-harm, suicide, eating disorders, substance abuse or sexualization. The bill empowers the Federal Trade Commission (FTC) to enforce any of these provisions. FTC enforcement power doesn't sit well with many free speech activists concerned over censorship.
For the ACLU, KOSPA could further compound efforts by predominately far-right Republican state lawmakers and officials to censor material they say is "harmful to minors."
But what these far-right officials consider "harmful to minors" often isn't even remotely classified as pornography. In fact, there is concern that KOSPA could be used to censor online speech dealing with reproductive health, resources for LGBTQ+ youth, and material in the news media deemed "harmful."
“As state legislatures and school boards across the country impose book bans and classroom censorship laws, the last thing students and parents need is another act of government censorship deciding which educational resources are appropriate for their families," said Jenna Leventoff, senior policy counsel at the ACLU's national affiliate, in a press statement.
"The vast majority of speech that KOSA affects is constitutionally protected in the U.S., which is why there is a long list of reasons that KOSA is unconstitutional," wrote Joe Mullin, a senior policy analyst for the Electronic Frontier Foundation, in a July 30 blog post.
If the bill passes the House and is signed into law by lame-duck President Joe Biden, this could harm civil liberties for millions of youth and adults.
KOSPA also orders the executive branch to conduct a feasibility study about laying down the groundwork for a national age-verification requirement for all internet websites. Naturally, this is a matter that troubles adult entertainment industry stakeholders who are already fighting attempts by the same predominately far-right officials to censor otherwise legal adult platforms.
"It will be interesting to see what [the U.S. Supreme Court] does with KOSA," adult industry attorney Michael Fattorosi told AVN.
Fattorosi refers to ongoing litigation in several federal courts, including the conservative-leaning Supreme Court, where adult industry trade group the Free Speech Coalition challenged state age verification laws targeting porn. Of note, the Free Speech Coalition sued the state of Texas along with the parent companies of the world's largest adult platforms targeting the age verification measure adopted by that state's legislature in 2023. AVN continues to report extensively on this case and how the Supreme Court took up the case for the next court term.
"I believe what they decide in the Texas litigation involving the adult industry will signal how they may decide KOSA," if a case is brought to the high court, Fattorosi said.
Corey Silverstein, another adult industry attorney, also told AVN that he is "alarmed by the fact that lawmakers seem to be conveniently forgetting or ignoring the U.S. Constitution and existing case precedent. I agree that protecting our youth online is essential, but using a sledgehammer to mount a nail isn't the solution."
The KOSPA legislative vehicle has advanced to the House of Representatives.
House Speaker Mike Johnson, R-La., said he's "looking forward to reviewing the details of the legislation" in a statement his office made to The Verge on July 23.
