KOSA: Protecting Kids or Policing Speech?

At the end of July, the United States Senate voted to advance the Kids Online Safety Act (KOSA) for a vote in the House after vigorous opposition from civil liberties organizations ranging from the American Civil Liberties Union (ACLU) to NetChoice. KOSA has been the subject of controversy since its initial introduction in 2022 by Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN), primarily because it empowers the government to enforce a vague “duty of care” against digital platforms. Essentially, this means that websites and apps could be sued for not exercising reasonable caution in ensuring their platform does not expose children to “harmful content,” whether that be explicit material or self-harm promotion. Earlier versions of the bill authorized both the Federal Trade Commission as well as politically elected State Attorneys Generals (AGs) to enforce the “duty of care” provision, prompting concerns around biased enforcement and the suppression of protected speech. 

The current version limits the powers granted to state AGs but still grants the FTC broad authority to police the internet. Although the FTC is more politically independent than state enforcers, the agency’s history with child safety regulation still makes KOSA a ticking constitutional time bomb. Indeed, it was precisely the overregulation of child safety that inspired Congress to pass legislation in 1980 to curtail the FTC’s rulemaking powers.

Child Safety and Free Speech

Online child safety is a potent but relatively underappreciated topic. When one thinks of digital platform governance, broad-sweeping matters such as antitrust, data privacy, content moderation, and cybersecurity come to mind. However, although Congress may be stuck in gridlock on passing competition law reform or federal data privacy protections (and for good reason), the Senate overwhelmingly approved KOSA 91-3. 

Indeed, despite fierce pushback from diverse interests ranging from industry groups to LGBTQ advocacy organizations, lawmakers from both sides supported the bill. Traditional civil liberties organizations such as the Foundation for Individual Rights and Expression (FIRE) warned that the vague language of KOSA would inevitably authorize the suppression of protected speech as enforcers were given broad discretion to determine what is harmful to children. LGBTQ organizations expressed justified concern that conservative enforcers would not exercise nuance in policing genuinely inappropriate content, such as promoting sexual content to children, and helpful resources, such as websites providing guidance to LGBTQ youth. Indeed, Senator Blackburn was on record stating that she believed KOSA would help in “protecting minor children from the transgender in this culture.” The same thing can be said about left-wing enforcers who can foreseeably leverage KOSA to prosecute their own disfavored groups such as gun retailers, Trump supporters, and what they may loosely define as “racism.”

However, supporters of KOSA are not without merit. Indeed, it is hard to blame Senators for not wanting to be seen as standing against child safety and being framed as defenders of mental health issues, suicide, pedophilia, and all the terrible things that harm children on the internet. One remarkably prescient example was the airing of grievances that occurred on January 31, 2024, at the Senate Judiciary’s hearing on “Big Tech and the Child Exploitation Crisis.” At the hearing, parents packed the chamber, holding up signs of their children who were harmed by their experience on social media. Five CEOs were seated in the witness chairs: Mark Zuckerberg of Meta, Shou Chew of TikTok, Evan Spiegel of Snapchat, Jason Citron of Discord, and Linda Yaccarino of X (formerly Twitter). 

Each of the senators from both parties took turns berating the CEOs about the threats endured by children on their platforms, ranging from cyberbullying to eating disorders to sex trafficking to suicide promotion. Even the most principled defenders of free speech could do little but listen in horror as the attacks came one by one. Although heavy-handed content regulation is not the answer, the emotion in the room, from the grieving parents to the bipartisan outrage, was impossible to ignore. The most iconic moment of the hearing came when Senator Josh Hawley (R-MO) asked Zuckerberg to stand up and apologize to the parents in the audience for the harm their children suffered on Facebook and Instagram—a public relations disaster for Meta and a masterstroke for Hawley and those who support KOSA. 

KOSA, As Amended, Is Still Dangerous

Although the authors of KOSA insist that the bill does not target speech but conduct, enforcement will clearly target expression on an as-applied basis. That is, the difference between compliant conduct and illegal activity would be the content that the allegedly harmful conduct promotes. Two websites can have the same features, but one can be sued for showcasing material that enforcers find unsavory, be it resources for LGBTQ youth or what the powers that be deem to be “dangerous misinformation.”

However, the ultimate problem with the amended legislation is the insistence that the FTC can constitutionally enforce KOSA’s “duty of care” provision and, even if it could, would do so in a way that does not unduly burden society. Most, if not all, critics of KOSA express concern that the Commission cannot be trusted to remain impartial. The President ultimately decides the political bent of the agency by selecting the Chair to create a 3-2 majority for the party controlling the White House. Although the Commission may not be as political as an elected State AG, it is not absurd to believe that ideological biases, if not overt agendas, can prevail. Indeed, Biden’s FTC Chair, Lina Khan, has taken the agency in a highly progressive direction, targeting large tech firms with novel antitrust theories and introducing untraditional priorities such as labor rights. It would not be farfetched to believe a Trump Administration would choose its own ideological Chair. 

What the FTC Can Learn From Its Own History

However, even without an activist FTC Chair, the Commission’s record on child safety suggests that it would likely overregulate and become a nanny state enforcer. Notwithstanding the fact that KOSA authorizes the FTC to undertake a traditional parental activity, moderating what content children can see, the agency has previously attempted to regulate child safety and sparked public outrage. In 1978, the Commission infamously promulgated its “KidVid” rule that sought to mitigate the danger sugary food TV ads posed to children. FTC Officials reflecting on the regulation explain in a report that the rule did the following:

1. Ban all television advertising for any product that is directed to, or seen by, audiences with a significant proportion of children too young to understand the selling purpose of advertising; 
2. Ban television advertising for food products posing the most serious dental health risks, which is directed to, or seen by, audiences with a significant proportion of older children; and 
3. Require that television advertising for sugared food products not included in the ban, but directed to, or seen by, audiences with a significant proportion of older children, be balanced by nutritional or health disclosures funded by advertisers.

The rule was seen as so intrusive and disproportionate that Congress passed the FTC Improvement Act to punish the agency and also briefly shut down the Commission. Indeed, even the liberal-leaning Washington Post published an article entitled “The FTC as National Nanny,” reflecting the opposition from both industry interests as well as popular disapproval for the rule. The KidVid rulemaking marked a departure from policing commercial misconduct into the realm of micromanaging general welfare. 

The report notes that the FTC, deeply bruised by this reaction, spent the following decades rethinking its approach to regulation. Rather than attempting another heavy-handed solution to child safety, the FTC instead focused on its traditional unfair and deceptive acts enforcement while also conducting research studies into industry behavior such as marketing R-rated movies and graphic M-rated video games. Furthermore, the agency embraced a more interdisciplinary and tailored disposition by working with different agencies, such as the Food and Drug Administration and Health and Human Services. Finally, the agency solicited companies to produce informative ads to counter the potentially damaging content it was trying to address and encouraged private companies to develop self-governance frameworks. In essence, the agency addressed a very real problem by stepping back and adopting a more comprehensive approach that did not imperil free expression or rely on draconian regulation. 

It seems that 40 years is ample time for Congress to forget the lesson of the “KidVid” rulemaking. Rather than tempering the FTC the Senate is eagerly empowering the agency to play national nanny once again. However, there is still time to reflect and remember that child safety can be protected without restricting free expression or unduly attacking the tech industry. Indeed, it is likely that by attempting to trade our freedom for security, we may end up with neither.