Activists fighting the Kids Online Safety Act — which passed the United States Senate earlier this year — have found an unlikely ally in House Speaker Mike Johnson (R-Louisiana), who said he, too, has free speech concerns with the bipartisan legislation.
Asked about the prospects of the bill passing before the end of the 118th Congress, which ends January 3, Johnson said, "There's still some concern about the free speech components of that, and whether it might lead to further censorship by the government of valid, you know, conservative voices, for example. So we're working through all that."
As the Bay Area Reporter previously reported, the bill has been critiqued by both LGBTQ advocacy groups and civil libertarians for its potential infringement on freedom of speech. Senator Rand Paul (R-Kentucky) — one of two senators to vote no when KOSA was in the upper chamber — explained his reasoning in a letter to colleagues.
"While proponents of the bill claim that it is not designed to regulate content, imposing a 'duty of care' on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of First Amendment protected speech," Paul wrote. "The bill contains a number of vague provisions and undefined terms. The text does not explain what it means for a platform to 'prevent and mitigate' harm, nor does it define 'addition-like behaviors.'"
The bill, introduced by Senators Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee), has been championed by Democratic leaders, including Senate Majority Leader Chuck Schumer (D-New York) and President Joe Biden.
"It's time to pass bipartisan legislation to stop Big Tech from collecting personal data on kids and teenagers online, ban targeted advertising to children, and impose stricter limits on the personal data these companies collect on all of us," Biden said in this year's State of the Union address.
According to a bill summary authored by the Library of Congress, the legislation would require "applications or services that connect to the internet and are likely to be used by minors" to "act in the best interest of a minor using its application or service. This includes a duty to prevent and mitigate heightened risks of harms that may arise from using the platform."
By creating a duty of care, companies could be held liable for harms young people experience on social media. Groups such as Fight for the Future, which opposes KOSA, claim this is vague.
"The duty of care is the central issue," Sarah Philips, a queer woman who is a community organizer with Fight for the Future, told the B.A.R. during a December 16 phone interview. "The duty of care is what enables censorship and incentivizes social media companies to take down content.
"We don't have consensus over what is harmful to children," Philips added. "Many conservatives in this country use that rhetoric to target and censor LGBTQ people, social justice, comprehensive sex education, ban books, et cetera."
Philips worries about the implications of the act once President-elect Donald Trump returns to the White House next month.
"A Trump FTC, for example, could be empowered to go after companies for posting abortion fundraisers or letting creators talk about gender-affirming health care," she said, referring to the Federal Trade Commission.
Meanwhile, the legislation has gotten an assist from Elon Musk, the X owner who is now a top confidant of Trump's. X worked with the Senate sponsors of the bill, company CEO Linda Yaccarino stated.
Yaccarino announced over the weekend that they have worked with Blumenthal and Blackburn to alleviate some of the issues.
"We've heard the pleas of parents and youth advocates who seek sensible guardrails across online platforms, and the Kids Online Safety Act (KOSA) addresses that need," Yaccarino stated. "After working with the bill authors, I'm proud to share that we've made progress to further protect freedom of speech while maintaining safety for minors online. We urge Congress and the House to pass the Kids Online Safety Act this year."
Musk himself posted, "Protecting kids should always be priority #1."
Philips said Musk's involvement is concerning.
"I don't know to what level he was involved but as an organization that has been cognizant of the way Musk has affected Twitter and his views around trans people, we view this as further evidence KOSA is not in the place it should be," Philips said, referring to X's former name. "I don't consider Elon Musk an expert in online kids safety."
One of Musk's daughters is trans, and he has referred to her as "dead" following her transition, which he said he was "tricked" into approving while she was still a minor, CNN reports.
Philips said the duty of care portion of the legislation is precisely what makes it so objectionable.
"Speaker Johnson is signaling KOSA is not ready, which digital rights and free speech and civil rights groups agree with," Philips said. "KOSA isn't ready as long as there is a duty of care."
However, one way or the other, "we have every expectation they will try to pass it in the next year," she added.
The 119th Congress, in which the House and Senate will both be under Republican control, begins January 3. KOSA would need to be reintroduced if it is not passed out of the 118th Congress, as it would expire.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
LGBTQ Agenda returns Tuesday, January 14.
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