Despite Its Popularity, The Kids Online Safety Act Won’t Help Young People, It Will Hurt Them

How to protect the health and safety of young people online without resorting to the censorship and surveillance incentivized by KOSA.

by Kate Horgan

By: Steve Macek

In January 2024, top executives at X (formerly Twitter), Meta (parent company of Facebook and Instagram), Snap, Discord, and TikTok appeared at a Senate hearing to answer questions about protecting children and teens online. In attendance were parents whose children had been harmed by or died as a result of their social media consumption. A climactic moment in the hearing came when Meta CEO Mark Zuckerberg apologized to the parents in the audience.

There is reason to suspect that social media use may be connected in some way to increasing depression and anxiety in young people and adults alike. Indeed, in May 2023, the US Surgeon General issued a health advisory warning that teens who use social media for more than three hours a day put their mental health at risk. But the nature of the connection between social media use and mental illness is murky at best and there is plenty of research that suggests no connection whatsoever.

Moreover, concerned parents and members of Congress have seized on concerns about social media to push an ill-considered piece of internet censorship legislation called the Kids Online Safety Act (KOSA) that will not make children any safer online, but will violate the free speech rights of both young people and adults, and will likely be weaponized against LGBTQ+ youth. As Project Censored has previously reported, legislators have “capitalized on the moral panic surrounding the impact of social media to propose problematic legislation” such as KOSA, resulting in a wave of legislation aimed at protecting children online.

The Kids Online Safety Act
Sponsored by Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN), KOSA was first introduced in 2022 following Facebook whistleblower Frances Haugen’s explosive revelations about the damaging impact of Instagram use on mental health in teens and children. The bill would impose a “duty of care” on websites and apps—principally, social media apps—to “prevent and mitigate” harms to children, such as anxiety, depression, suicidal ideation, drug abuse, and eating disorders, associated with their services.

It would require platforms to take steps to avoid recommending content that might promote mental health disorders to minors and ban advertising of age-restricted services (such as online gambling) and products (alcohol, tobacco) targeted at them. Under the legislation, platforms would have to give minors safeguards they can use to limit communication with others, restrict access to their private information, and protect their geolocation data. KOSA would also mandate that social media platforms provide parents with tools to protect their children’s safety online and require that they be notified if their children are exposed to potentially harmful materials.

In the version of the bill being considered last year, the legislation charged individual state attorneys general with enforcing its “duty of care” provisions, potentially allowing right-wing attorneys general in states like Florida and Texas, who are busy banning books with LGBTQ+ characters and prosecuting abortion providers, to decide what is “harmful to minors.” In response to criticisms from civil libertarians, the bill was revised so that, in its current iteration, the Federal Trade Commission has responsibility for enforcing the “duty of care” provision of the act while individual state attorneys general will be expected to enforce its safeguards for minors, transparency, and reporting requirements.

The legislation enjoys broad, bipartisan support. More than 60 senators, including Senate Majority Leader Chuck Schumer (D-NY), have endorsed the bill. A coalition of nonprofits, children’s advocates, and civic organizations, including the American Psychological Association, the American Academy of Pediatrics, the National Education Association, and the Eating Disorders Coalition, have urged its passage. And President Joe Biden has said he supports the law.

Moreover, polls indicate that huge majorities of American voters approve of government action to mitigate the harms caused by social media and favor most of the key components of the Kids Online Safety Act.

KOSA is a Censorship Bill That Will Undermine Young People’s Privacy
Although certain provisions of the Kids Online Safety Act—such as its prohibition on features of social media platforms designed to encourage compulsive user behavior—might be defensible, at its core the bill represents a massive expansion of government censorship that will cut young people off from legal and, in some cases, potentially life-saving content.

The 2023 version of KOSA rightly alarmed many LGBTQ+ rights advocates, who worried that it would be weaponized against gay, lesbian, queer, and trans youth. They were especially concerned that conservative state attorneys general might exploit the authority given them by the legislation to pressure websites into removing information about gender-affirming care or block young people’s access to LGBTQ+ online communities. Indeed, one of the bill’s main co-sponsors Marsha Blackburn said in a speech that one of the bill’s top priorities is to shield children from “the transgender in this culture.” The conservative Heritage Foundation also celebrated KOSA as a means to guard children “against the harms of sexual and transgender content.”

Though in its current version KOSA will be enforced by the FTC and not state attorneys general, the bill’s “duty of care” will still, likely, lead platforms and websites to prohibit any discussion of subjects that might get them into trouble. Educational content about sex, abortion, contraception, LGBTQ+ identity, depression, eating disorders, suicide, and other sensitive topics will simply disappear from the web or be placed behind age-verification walls. As Evan Greer of Fight for Freedom explains, “The way that this bill would work, it would just suppress all discussion of eating disorders among young people, because at scale, a platform like YouTube or Instagram is not going to be able to make a meaningful determination between, for example, a video that’s harmful in promoting eating disorders, or a video where a young person is just speaking about their experience with an eating disorder.” Being cut off from supportive online communities and information about their gender identities, sexuality, and health will hurt, rather than help, young people, and will be particularly devastating for young people from minoritized and marginalized groups.

Though one concern fueling support for KOSA is that social media companies rampantly violate the privacy of children and teens who use their platforms, the bill will actually encourage platforms and websites to further compromise users’ privacy by pushing them to adopt some sort of “age verification” scheme. While it is true that KOSA does not explicitly require age verification, websites and apps will have no choice but to require users to submit a government-issued identification or undergo biometric screening as a condition for accessing their services. How else will they be able to distinguish adult users from minors and avoid liability? Naturally, age verification will scare many adult users off the platforms that implement it. Moreover, an age verification scheme would eliminate whatever anonymity that users have online, undermining their First Amendment right to anonymous speech.

Lastly, it is worth noting that well-informed critics with expertise on the subject point out that KOSA is one of several bills that threaten the use of end-to-end encryption, which provides privacy protections that benefit all kinds of users, but especially members of marginalized communities.

Alternatives to KOSA
Despite the fact that KOSA appears poised for victory in the Senate, all is not lost. The proposed legislation is opposed by several civil liberties advocates and tech freedom groups, including the Electronic Frontier Foundation, the American Civil Liberties Union, the Woodhull Freedom Foundation, and Fight for the Future.

These groups and other critics of the bill have suggested a number of ways the government could protect the health and safety of young people online without resorting to the sort of censorship and surveillance incentivized by KOSA.

To begin with, the government could implement increased data privacy protections for all internet users. As EFF, among others, has argued, Congress could explicitly prohibit the widespread practice of “surveillance advertising,” which exploits data about users’ online behavior to target them with specially-tailored ads. Indeed, the Biden administration need not wait for Congress to act as the FTC has already created rules to protect children from “surveillance ads” and has the power to eliminate this form of ad tech altogether if it so desires.

In addition, the US could adopt some version of Europe’s General Data Protection Regulation (GDRU), requiring transparency about the data that websites gather about users and giving them a legal right to request any non-newsworthy personal information held by sites or apps be erased. Already five states—California, Colorado, Connecticut, Utah, and Virginia—have adopted GDRU-inspired data privacy laws. A federal law creating a right to control one’s personal data and a “right to erasure” of that data ought to be considered.

Greater transparency about, and systematic auditing of, the algorithms and AI that determine the online experience for both adults and minors would also help address some of the concerns Congress has about online media’s influence over children.

Finally, rather than hoping without evidence that censoring Instagram or TikTok will somehow ameliorate the country’s epidemic levels of depression and anxiety, we ought to instead fully fund public mental health services for all Americans. Even mainstream politicians acknowledge that more funding and resources are needed to address the country’s current mental health crisis. The poorest areas of the country tend to have the highest levels of depression. So, funneling more money for treatment into these high-needs areas should be a top priority.

Despite its bipartisan support, KOSA does a disservice to the young people it ostensibly aims to protect, by violating their First Amendment right to anonymous speech, potentially cutting off their access to perfectly legal content, and undermining important privacy protections that benefit all internet users. The government should impose more regulations on the way big tech companies and social media platforms harvest and use data from children and adults alike. But the sort of censorship proposed by the Kids Online Safety Act is not the answer.