![](\"https:\/\/images.pexels.com\/photos\/6437591\/pexels-photo-6437591.jpeg?auto=compress&cs=tinysrgb&w=1260&h=750&dpr=1\")
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By Caroline Kropka<\/p>\n
On February 15, 2024, the Kids Online Safety Act (KOSA) finally passed the Senate with over 60 backers.[1]<\/sup><\/a> The bill, which was first introduced by Senators Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.) in 2022, seeks to\u2013in the Senators\u2019 words\u2013\u201dprotect children online and hold Big Tech accountable.\u201d[2]<\/sup><\/a> In particular, KOSA purports to target social media and the harmful effects it can have on children.[3]<\/sup><\/a><\/p>\n KOSA would cover Internet-connected online platforms, video games, messaging apps, and video streaming services that are used or \u201creasonably likely to be used\u201d by minors under 17.[4]<\/sup><\/a> It would impose a duty of care on those platforms to take \u201creasonable measures in the design and operation of any product, service, or feature that the covered platform knows is used by minors to prevent and mitigate\u201d harms to minors.[5]<\/sup><\/a> Those harms include mental disorders like depression, eating disorders, and suicidal behaviors; bullying; sexual exploitation; and predatory or deceptive marketing practices.[6]<\/sup><\/a><\/p>\n KOSA also would require platforms to provide default \u201csafeguards\u201d that limit the ability of other users to communicate with minors; limit \u201cfeatures that result in compulsive usage\u201d of the platform, such as auto-playing videos, notifications, and features that \u201cincrease use\u201d of the platform; and options to limit screen time.[7]<\/sup><\/a><\/p>\n The Act would require platforms to provide \u201cparental tools\u201d such as management of the minor\u2019s \u201csafeguards\u201d and account settings, including control of their privacy, purchases, and screentime.[8]<\/sup><\/a><\/p>\n To be certain, social media may have serious negative impacts on children. For example, use of social media for beauty- and appearance-related content has been found to be related to poor body image, eating disorders, and depressive symptoms among girls.[9]<\/sup><\/a> A study of the TikTok algorithm found that accounts with their age set to 13 were recommended suicide-related content within the first 2.6 minutes of using the app, and eating disorder-related content within 8 minutes.[10]<\/sup><\/a> Some psychologists have suggested one solution to this is similar to KOSA\u2019s goals: \u201cdelay entry into social media, ideally keeping it entirely out of elementary and middle schools.\u201d[11]<\/sup><\/a><\/p>\n Another concern is the use of algorithms that serve up targeted content with no end in sight\u2014a subject that is surrounded by a lack of transparency and thus difficult to intensively research.[12]<\/sup><\/a> For example, TikTok gathers data about not just what videos a user tends to like or comment on, but even how long a user looks at a video\u2014even if they do not otherwise interact with it\u2014to personalize the content they are shown.[13]<\/sup><\/a> For an app whose audience as of 2021 was 17% users aged 13 to 17, that means a significant portion of the data their algorithm uses is that of minors.[14]<\/sup><\/a><\/p>\n KOSA is not the first act introduced with the goal to protect minors on the Internet. In 1998\u2014a year in which only 26% of American households had internet access[15]<\/sup><\/a>\u2014Congress introduced the Children\u2019s Online Privacy Protection Act (COPPA), which regulates commercial websites and online services\u2019 collection and use of data from children under 13.[16]<\/sup><\/a><\/p>\n Iin 2023, the Protecting Kids on Social Media Act was introduced in the Senate; it originally would have required social media platforms to verify the ages of account holders before they can create or use their accounts.[17]<\/sup><\/a> Perhaps recognizing the unconstitutionality of requiring age (and thus identity) verification for every adult that uses social media, that provision was removed in a later draft of the bill.[18]<\/sup><\/a> Instead, the bill will now place a \u201creasonable care\u201d standard on social media platforms to prevent children from making an account \u201cif it has actual knowledge or knowledge fairly implied on the basis of objective circumstances that the individual\u201d is under 13.[19]<\/sup><\/a><\/p>\n However, these Acts which purport to protect children have met with heavy criticism that they not only misunderstand the complexities of children\u2019s Internet usage; they infringe on children\u2019s Constitutional rights.[20]<\/sup><\/a> This is not a new problem\u2014the Communications Decency Act (CDA), introduced in 1996, and the Children\u2019s Online Protection Act (COPA), introduced in 1998, both faced heavy criticism for their unconstitutionality.[21]<\/sup><\/a> The CDA, for example, tried to prohibit anyone from communicating \u201cobscene or indecent\u201d messages to minors under 18, as well as posting \u201cpatently offensive\u201d material where minors could access it.[22]<\/sup><\/a> After a challenge by the ACLU, the Supreme Court declared that the statute was overbroad and infringed free speech; in particular, that the words \u201cindecent\u201d and \u201cpatently offensive\u201d were so vague as to be difficult to understand what would count as prohibited.[23]<\/sup><\/a><\/p>\n KOSA has been subject to the same concerns about its violating the First Amendment in particular. For example, the Electronic Frontier Foundation (EFF) argues that the \u201charms\u201d under the statute are so vaguely defined, and the imposition on platforms to \u201cprevent and mitigate\u201d those harms is so harsh, that it leaves platforms without real guidance\u2014when their failure could have serious consequences.[24]<\/sup><\/a> To avoid that outcome, these platforms would be incentivized to censor any discussions that might make them liable.[25]<\/sup><\/a><\/p>\n A major concern from groups like the ACLU is that this legislation could be used to suppress certain types of content from young people, such as information and resources for transgender youth, mental health resources, and abortion, depending on how states choose to define the prevention of \u201charm.\u201d[26]<\/sup><\/a><\/p>\n The EFF raised similar worries, noting that the same Sen. Blackburn who co-authored KOSA has called education on race discrimination \u201cwoke gymnastics\u201d and \u201cdangerous for kids\u201d\u2014in other words, \u201charmful.\u201d[27]<\/sup><\/a> The free speech concerns do not only reach left-wing issues: the Act is so vague, argues the EFF, that discussions on gun ownership could just as easily be suppressed by a state that deems the topic \u201charmful\u201d based on miniscule evidence.[28]<\/sup><\/a> Even discussions of topics like suicidal thoughts or substance abuse\u2014and attempts to gain support and guidance for those struggling with those issues\u2014could be construed as content \u201cpromoting\u201d those behaviors to minors.[29]<\/sup><\/a><\/p>\n These concerns echo those that caused the DCA to be declared unconstitutional: \u201c[c]ould a speaker confidently assume that a serious discussion about birth control practices, homosexuality, . . . or the consequences of prison rape would not violate the CDA?\u201d[30]<\/sup><\/a> KOSA\u2019s similarly vague terms could chill free speech across the Internet\u2014not only for children, but also adults who use the same platforms.[31]<\/sup><\/a><\/p>\n For all this effort, the consequences of social media use are not nearly as cut-and-dry as the proponents of KOSA contend. For the negative impacts on minors, there are plenty of positive effects the Internet makes possible: connection to global communities, particularly for LGBT and marginalized minors[32]<\/sup><\/a>; access to specialized information about recreation, health, hobbies, education, and everything in between[33]<\/sup><\/a>; healthy socialization and psychological development[34]<\/sup><\/a>; and opportunities to share their thoughts, art, and work.[35]<\/sup><\/a> The most effective solution to address children\u2019s use of the Internet will be one that understands the benefits of Internet access and survives a constitutional challenge. KOSA, however, is most likely both too vague and too one-sided to accomplish either of those goals.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n Image Source: https:\/\/www.pexels.com\/photo\/black-children-using-laptop-at-table-6437591\/<\/p>\n [1]<\/sup><\/a> Cristiano Lima-Strong, Senate poised to pass biggest piece of tech regulation in decades<\/em>, Wash. Post, https:\/\/www.washingtonpost.com\/technology\/2024\/02\/15\/kids-online-safety-act-kosa-senate\/ (February 15, 2024, 4:22 PM).<\/p>\n [2]<\/sup><\/a> Blackburn, Blumental Introduce Bipartisan Kids Online Safety Act<\/em>, Marsha Blackburn (May 2, 2023), https:\/\/www.blackburn.senate.gov\/2023\/5\/blackburn-blumenthal-introduce-bipartisan-kids-online-safety-act.<\/p>\n [3]<\/sup><\/a> Sens. Richard Blumenthal & Marsha Blackburn, The Kids Online Safety Act of 2022<\/em> (2022), https:\/\/www.blumenthal.senate.gov\/imo\/media\/doc\/kids_online_safety_act_-_one_pager.pdf.<\/p>\n [4]<\/sup><\/a> Kids Online Safety Act, S.1409, \u00a7 2 (1),(3), 118th Cong. (2023),<\/p>\n [5]<\/sup><\/a> Id.<\/em> at \u00a7 3(A).<\/p>\n [6]<\/sup><\/a> Id.<\/em> at \u00a7 3(A)(1)\u2013(6).<\/p>\n [7]<\/sup><\/a> Id.<\/em> at \u00a7 4(a)(1)\u2013(2).<\/p>\n [8]<\/sup><\/a> Id.<\/em> at \u00a7 4(b)(1)\u2013(4).<\/p>\n [9]<\/sup><\/a> Health Advisory on Social Media Use in Adolescence<\/em>, Am. Psych. Ass\u2019n 8 (2023), https:\/\/www.apa.org\/topics\/social-media-internet\/health-advisory-adolescent-social-media-use.pdf.<\/p>\n [10]<\/sup><\/a> Deadly By Design<\/em>, Ctr. for Countering Digit. Hate (2022), https:\/\/counterhate.com\/wp-content\/uploads\/2022\/12\/CCDH-Deadly-by-Design_120922.pdf.<\/p>\n [11]<\/sup><\/a> Jonathan Haidt & Jean M. Twenge, This Is Our Chance to Pull Teenagers Out of the Smartphone Trap<\/em>, N.Y. Times (July 31, 2021), https:\/\/www.nytimes.com\/2021\/07\/31\/opinion\/smartphone-iphone-social-media-isolation.html.<\/p>\n [12]<\/sup><\/a> Megan McCluskey, How Addictive Social Media Algorithms Could Finally Face a Reckoning in 2022<\/em>, Time (Jan. 4, 2022, 12:36 PM), https:\/\/time.com\/6127981\/addictive-algorithms-2022-facebook-instagram\/.<\/p>\n [13]<\/sup><\/a> Inside TikTok\u2019s Algorithm: A WSJ Video Investigation<\/em>, Wall St. J. (July 21, 2021, 10:26 AM), https:\/\/www.wsj.com\/amp\/articles\/tiktok-algorithm-video-investigation-11626877477.<\/p>\n [14]<\/sup><\/a> Tanya Dua, Never-before-seen TikTok stats from leaked sales presentations show how it’s trying to lure advertisers to the platform<\/em>, Bus. Insider (Apr. 13, 2021, 7:36 AM), https:\/\/www.businessinsider.com\/tiktok-pitch-deck-shows-new-e-commerce-ads-2021-4.<\/p>\n [15]<\/sup><\/a> Eric C. Newburger, U.S. Dep\u2019t Com., Home Computers and Internet Use in the United States: August 2000<\/em> (2001), https:\/\/www.census.gov\/content\/dam\/Census\/library\/publications\/2001\/demo\/p23-207.pdf.<\/p>\n [16]<\/sup><\/a> Complying with COPPA: Frequently Asked Questions<\/em>, Fed. Trade Comm\u2019n, https:\/\/www.ftc.gov\/business-guidance\/resources\/complying-coppa-frequently-asked-questions (January 2024),<\/p>\n [17]<\/sup><\/a> Protecting Kids on Social Media Act, S.1291, 118th Cong. (2023).<\/p>\n [18]<\/sup><\/a> Sophia Cope et. al, Protecting Kids on Social Media Act: Amended and Still Problematic<\/em>, Elec. Frontier Found. (Nov. 20, 2023), https:\/\/www.eff.org\/deeplinks\/2023\/11\/protecting-kids-social-media-act-amended-and-still-problematic.<\/p>\n [19]<\/sup><\/a> Id.<\/em><\/p>\n [20]<\/sup><\/a> Id.<\/em><\/p>\n [21]<\/sup><\/a> Lee Tien, After 10 Years, an Infamous Internet-Censorship Act is Finally Dead<\/em>, Elec. Frontier Found. (Jan. 21, 2009), https:\/\/www.eff.org\/deeplinks\/2009\/01\/copa.<\/p>\n [22]<\/sup><\/a> Sara L. Zeigler, Communications Decency Act and Section 230 (1996)<\/em>, Free Speech Ctr., https:\/\/firstamendment.mtsu.edu\/article\/communications-decency-act-and-section-230\/ (Feb. 18, 2024).<\/p>\n [23]<\/sup><\/a> Reno v. ACLU, 521 U.S. 844, 870\u201371 (1997).<\/p>\n [24]<\/sup><\/a> Jason Kelley, The Kids Online Safety Act is Still A Huge Danger to Our Rights Online<\/em>, Elec. Frontier Found. (May 2, 2023), https:\/\/www.eff.org\/deeplinks\/2023\/05\/kids-online-safety-act-still-huge-danger-our-rights-online.<\/p>\n [25]<\/sup><\/a> Id.<\/em><\/p>\n [26]<\/sup><\/a> Jesse Greenspan, Social Media Can Harm Kids. Could New Regulations Help?<\/em>, Sci. Am. (May 26, 2023), https:\/\/www.scientificamerican.com\/article\/social-media-can-harm-kids-could-new-regulations-help\/.<\/p>\n [27]<\/sup><\/a> Kelley, supra<\/em> note [22]; Why Is Critical Race Theory Dangerous For Our Kids?<\/em>, Marsha Blackburn (July 12, 2021), https:\/\/www.blackburn.senate.gov\/2021\/7\/why-is-critical-race-theory-dangerous-for-our-kids.<\/p>\n [28]<\/sup><\/a> Kelley, supra<\/em> note [22].<\/p>\n [29]<\/sup><\/a> Jeffrey Westling, Kids Online Safety Act Could Do More Harm Than Good<\/em>, Am. Act. Forum (Sept. 22, 2022), https:\/\/www.americanactionforum.org\/insight\/kids-online-safety-act-could-do-more-harm-than-good\/.<\/p>\n [30]<\/sup><\/a> Reno v. ACLU, 521 U.S. at 871.<\/p>\n [31]<\/sup><\/a> Casey Newton, How the Kids Safety Online Act puts us all at risk<\/em>, The Verge (Aug. 4, 2023, 9:40 AM), https:\/\/www.theverge.com\/2023\/8\/4\/23819578\/kosa-kids-online-safety-act-privacy-danger.<\/p>\n [32]<\/sup><\/a> Greenspan, supra<\/em> note 26.<\/p>\n [33]<\/sup><\/a> Shoshana Weissmann et. al, R Street Institute Concerns About the Kids Online Safety Act<\/em>, R Street (July 27, 2023), https:\/\/www.rstreet.org\/commentary\/r-street-institute-concerns-about-the-kids-online-safety-act\/.<\/p>\n