Amended KOSA Places Lina Khan in Charge of Deciding What’s Best for Our Kids Online

In February, Sen. Richard Blumenthal (D-Conn.) unveiled an amended version of S.1409, the long-simmering Kids Online Safety Act (KOSA). The R Street Institute has emphatically warned against this unconstitutional proposal, which embodies many of the worst ideas for protecting kids from harmful content online. Now the House has followed suit, introducing a similarly worded companion bill, H.R. 7891, along with several other bills claiming to protect kids online. Unfortunately, KOSA’s most recent iterations still fail to address the bill’s core problems and make them even worse by placing far more authority for enforcement into the hands of the Federal Trade Commission (FTC).

KOSA shares much of its general design with the Age Appropriate Design Code concept, first passed in the United Kingdom and subsequently copied by California. It imposes a duty of care upon the largest social media platforms to avoid product designs or features that might cause physical or mental harm to minors. This seems quite reasonable in theory. But in practice, what is considered harmful to minors is defined vaguely, including anything that might promote various psychological disorders like anxiety or depression or features that might, as the bill puts it, “encourage compulsive use” of the platform. Companies are told to disable any features that might cause these harms by default for any user whom they “know” to be a minor, which could compel them to broadly over-censor content as well.

Much of how these definitions are enforced will come down to guidance issued by the FTC, in coordination with a new Kids Online Safety Council (on which the FTC has a seat). This, as the Electronic Frontier Foundation observed, “allows a small group of federal officials appointed by the President to decide what content is dangerous for young people.” Thereafter, the FTC is empowered to act as KOSA’s primary enforcer. This represents a slight shift in emphasis of enforcement from earlier iterations, which gave more responsibility to state attorneys general (AGs).

This shift in authority toward the FTC is a deliberate attempt to assuage concerns about the potential politicization of what sort of content might be deemed harmful for children.

The idea that the FTC is somehow a more neutral and less political organization is undermined by a House Judiciary Committee report that shows an agency in disarray, with a leader bent on pursuing “an agenda set to remake the American economy according to her values.” Chair Lina Khan’s pursuit of a radically progressive expansion of antitrust and consumer protection enforcement brought a stark partisan atmosphere to a commission that had previously established a reputation for bipartisanship. As a result, both Republican members of the five-person commission resigned, with Commissioner Christine Wilson citing Chair Khan’s “disregard for the rule of law and due process” and a lack of transparency between majority and minority commissioners.

Ultimately, changing KOSA’s primary enforcer doesn’t change the fact that the duty of care model at its core cannot help but affect platforms’ decisions regarding content and features. Liability for potential psychic harms to minors places platforms in a difficult conundrum: inconvenience all users by treating them as minors, enact some level of age-gating that creates a totally different experience for minors, or just ban minors altogether. Though the legislation itself denies it, the bill’s real-world effect will be to push large social media platforms toward mandatory age verification—raising a number of practical and constitutional concerns.  

California’s Age Appropriate Design Code is already under court injunction, and it appears likely to be struck down on First Amendment grounds because of the pressure placed upon platforms to over-moderate speech. KOSA is similarly structured and will almost certainly suffer the same fate.

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