Fostering a safe online environment for kids and teens should be a paramount concern for families, educators, and society at large.
However – despite the President’s State of the Union call to “protect our children online” – the latest revamp of the Kids Online Safety Act still fails to meet the moment.
The co-sponsors of the bill have styled it as a series of reforms to the design of online platforms purportedly to keep kids safe from an array of harms. But make no mistake: This legislation is an effort to regulate the content that all Americans, regardless of age, see online. If enacted, the measures will censor Americans’ speech and ability to communicate with one another, limit our ability to access information on a range of topics and expose our personal information to new privacy and security vulnerabilities.
This misguided legislation purports to shift the burden of creating a safe information environment onto the online platforms that countless Americans use every day. It does this, in part, by imposing a “duty of care” on platforms to prevent and mitigate mental health disorders, violence and harassment, sexual exploitation, and other harms to minors that some have attributed to social media usage. However, adopting a negligence standard to be enforced by the FTC will almost certainly lead platforms to err on the side of caution – cutting off access to content and communities, removing legitimate speech, and sanitizing online information sources. This is exacerbated because the requirements apply even if the platform does not know that a user is a minor.
These provisions threaten the delicate balance between regulation and freedom of expression by compelling online platforms to engage in content censorship affecting users of all ages to be policed by federal and state governments.
For example, beyond the “duty of care,” the bill requires mandated disclosure of detailed information regarding actual and potential harm to minors, along with third-party audits. This will empower both the FTC and elected state officials to decide what is and is not appropriate speech. It will lead the FTC and state attorneys general to implement restrictive, and possibly incompatible, content rules that fit subjective political goals – whether that’s excluding access to LGBTQ+ issues or to conservative journalism – all in the name of preventing “harm.”
The upshot is that if enacted, the Kids Online Safety Act will create two routes to compliance for platforms, each with considerable trade-offs.
First, platforms could censor all content that may fall within the vague contours of “harm” set out in the bill. This raises serious First Amendment and free expression concerns, as two federal courts have recently concluded in evaluating similar legislation.
Second, platforms could opt to verify users’ ages, which would require the collection of significantly more personal information from kids and adults alike, as currently there is no technology that can accomplish this feat without gathering significantly more sensitive data. Not only will this second option be slow to implement and harmful to the competitiveness of online platforms, it would also lead to an increase in privacy and cybersecurity risks, directly contradicting the intended goal.
It is also important to point out what this bill will not do.
Contrary to claims of supporters, it will not stop the ability of child predators and cyberbullies to use online platforms to harm children. It will, however, cut off access to resources that are essential to helping with those problems. And the bill will do nothing to provide necessary resources to federal and state enforcers to go after bad actors – indeed, a recent report found that law enforcement investigates less than 1% of child sexual abuse material reports – or support the work of organizations that can provide assistance to victims and survivors.
Any legislation concerning how kids operate online must meet a core set of requirements. To keep them safe, it must minimize the collection of personal data and restrict how data is used, provide easy-to-use and accessible tools that empower children and families to customize safety protections and exercise rights over their data, require platforms to be more transparent, prohibit advertising based on the activity of children, and protect children’s personal information with strong security safeguards that are appropriate to the level of sensitivity of the personal information collected.
To keep kids connected, legislation must ensure children and teens have equitable access to educational material on the internet and support resourcing to foster media and digital literacy in K-12 schools. Lastly, to keep platforms accountable, it should require risk-based impact assessments to address risks to young users, provide additional accountability by empowering enforcement, and advance consistent rules across the United States.
It’s time for Congress to take a measured step back and address these very real constitutional, privacy, and practical concerns. While the goal of maintaining kids’ well-being is universally shared, the current proposal is not the most effective, constitutional, or safest way to achieve it. Striking a balance between safeguarding children and protecting free expression may be challenging, but it is imperative to making meaningful changes to mitigate risk in today’s virtual world.
