from the congressional-mass-hysteria dept
Passing blatantly unconstitutional dangerous laws “to protect the children” based on totally unsubstantiated moral panics appears to be part of a bipartisan mass hysteria these days. The Kids Online Safety Act, or KOSA, is officially back. And, with it, the recognition that over a quarter of the Senate has bought into this dangerous, unconstitutional nonsense:
It’s sponsored by long-term anti-internet Senators Richard Blumenthal and Marsha Blackburn, and has a ton of co-sponsors, who seem all too eager to support this kind of nonsense:
The Kids Online Safety Act has been cosponsored by U.S. Senators Shelley Moore Capito (R-W.Va.), Ben Ray Luján (D-N.M.), Bill Cassidy (R-La.), Tammy Baldwin (D-Wis.), Joni Ernst (R-Iowa), Amy Klobuchar (D-Minn.), Steve Daines (R-Mont.), Marco Rubio (R-Fla.), John Hickenlooper (D-Colo.), Dan Sullivan (R-Alaska), Chris Murphy (D-Conn.), Todd Young (R-Ind.), Chris Coons (D-Del.), Chuck Grassley (R-Iowa), Brian Schatz (D-Hawaii), Lindsey Graham (R-S.C.), Mark Warner (D-Va.), Roger Marshall (R-Kan.), Peter Welch (D-Vt.), Cindy Hyde-Smith (R-Miss.), Maggie Hassan (D-N.H.), Markwayne Mullin (R-Okla.), Dick Durbin (D-Ill.), Jim Risch (R-Idaho), Sheldon Whitehouse (D-R.I.) and Katie Britt (R-Ala.). More cosponsors may be added during today’s session.
The latest version of the bill fails to fix all of the problems with the version introduced in the last session of Congress, and, as TechFreedom’s Ari Cohn lays out, this entire approach to legislating is an attack on the First Amendment and will do real harm to children, rather than protect them.
There are vague terms about what creates “harm” to minors, meaning that websites will be pressured to suppress all sorts of content to avoid liability. It will also effectively mandate privacy-invading and problematic age verification technology. Like many other bills, it has a “parental consent” part, which fails to recognize that parents and children (especially teenagers) do not always have a healthy and respectful relationship.
But, to me, the worst part of the bill is the “duty of care” portion. Here’s how it’s worded. For years, we’ve explained how a “duty of care” is just a friendly sounding way of forcing censorship on platforms. To understand why, you have to understand how liability works under a duty of care. What it means is that if anything goes wrong after the fact (a child has an eating disorder, dies via suicide, etc.), someone can sue the website and argue they failed in their “duty of care” to protect the child.
But (news flash) even without the internet, people get eating disorders or die by suicide. As we’ve noted, teen suicide rates remain lower than they were in the 1990s, and across all age groups, they’re basically at the same rate they were in the 1970s. Meanwhile, multiple studies show that the highest risk factor for suicide is having easy access to a gun. But because the US is allergic to talking about gun violence due to an obsessive misreading of the 2nd Amendment, people feel free to throw the 1st Amendment in the trash and blame the internet instead.
And, with eating disorders, as multiples studies have detailed, attempts to take down content associated with eating disorders or encouraging eating disorders has actually made the problem significantly worse. That’s because teens with eating disorders would just come up with new language to talk about it, or create and find more hidden communities to discuss their eating disorders. It also made it much harder to post the kind of content that helps those with eating disorders realize they have a problem and get help. When those conversations were on more mainstream sites, it allowed others to enter those communities and provide useful information on how to gradually move away from the eating disorder.
Still, under a “duty of care” any time something bad happens, that individual or their family can sue the online service, claiming they did not satisfy the “duty of care” (even if they tried to moderate the worse content), and the site would then have to defend all its decisions in a costly lawsuit. The easier thing to do, of course, is to ban all such talk, take it down rapidly, and drive those conversations to more extreme forums, putting more kids at risk. And, still, kids on mainstream forums will figure out ways to discuss these things, and bad things will still happen… and expensive, frivolous lawsuits will get filed.
Even worse, it will be that much harder for there to be content helping those dealing with suicidal ideation or eating disorders, because even leaving up helpful content, or allowing users to try to help those in trouble will create a massive risk of liability.
The end result is going to be extraordinarily harmful to children, extremely suppressive of speech, and expensive for all sorts of websites (well beyond the big ones that can afford it).
There is literally nothing good about this law, which misunderstands human nature, the 1st Amendment, legal liability, and a whole lot more — all because of an unsubstantiated moral panic about “kids online.”
The press release statements from Blumenthal and Blackburn are particularly frustrating, as it shows that they have no clue what they’re doing. It’s full of myths and misleading claims.
“Our bill provides specific tools to stop Big Tech companies from driving toxic content at kids and to hold them accountable for putting profits over safety,” said Senator Blumenthal. “Record levels of hopelessness and despair—a national teen mental health crisis—have been fueled by black box algorithms featuring eating disorders, bullying, suicidal thoughts, and more. Kids and parents want to take back control over their online lives. They are demanding safeguards, means to disconnect, and a duty of care for social media. Our bill has strong bipartisan momentum. And it has growing support from young people who’ve seen Big Tech’s destruction, parents who’ve lost children, mental health experts, and public interest advocates. It’s an idea whose time has come.”
Again, it is not “record levels.” We’ve seen these levels before. And, the “solutions” in this bill do not understand how human nature works (not surprising, given Blumenthals long track record here). It will create even more harm and put more children in danger, while pretending to be a solution. This is a Blumenthal specialty, the same thing he did with FOSTA, which similarly put lives in danger while suppressing protected speech.
Blackburn is no better:
“Over the last two years, Senator Blumenthal and I have met with countless parents, psychologists, and pediatricians who are all in agreement that children are suffering at the hands of online platforms,” said Senator Blackburn. “Big Tech has proven to be incapable of appropriately protecting our children, and it’s time for Congress to step in. The bipartisan Kids Online Safety Act not only requires social media companies to make their platforms safer by default, but it provides parents with the tools they need protect their children online. I thank Senator Blumenthal for his continued partnership on this critical issue and urge my colleagues to join us in the fight to protect our children online.”
I’ve had a few meetings lately in which there were similar groups (pediatricians, psychologists) many of whom are understandably concerned about the health of children. But they seem extremely quick to blame the internet, despite the lack of supporting evidence that bills like this will help, rather than harm, children.
What’s notable is that Blackburn does not note that she met with anyone who has actual expertise in free speech, civil liberties, or how bills like this one can and will backfire and create more harm than good for children.
This has been a key problem in the lead up to this new version of KOSA. Knowing how much pushback they got last time, the authors of the bill made it clear they were cutting out civil society groups who could have pointed out the problems of this new bill. But that’s because it’s clear that Senators Blackburn and Blumenthal don’t actually care about getting this right. They care about getting a headline claiming they got it right. That it might put children in danger does not matter.
Just as Blumenthal, to this day, denies that his FOSTA law killed women and put many at risk, it’s not about actual safety. It’s about making sure Blumenthal gets a headline.
Filed Under: 1st amendment, age verification, duty of care, eating disorders, kids online safety act, kosa, marsha blackburn, moral panic, parental consent, protect the children, richard blumenthal, suicide