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The Kids Online Safety Act is harmful to safety and kids

Aggressive online age verification and content policing not only doesn’t work, it’s likely unconstitutional.
David Colborne
David Colborne

Who doesn’t want to protect the safety of children on the internet?

Even in politics, this is not a trick question. Defending the defenseless reliably polls very well across all races, ages and political persuasions. As much as the writers of “The Simpsons” and Wikipedia might hate it, voters reliably reward politicians for doing their best to protect everyone’s children, whether their best is any good or not.

In 1993, a cartoonist once quipped that, on the internet, nobody knows you’re a dog. Similarly, nobody knows if you’re really older than 18, either, and that hasn’t meaningfully changed over the past 30 years. Though there have been federal laws restricting how the internet interacts with children — the Children’s Online Privacy Protection Act, for example, was introduced in 1998 by Sen. Richard Bryan (D-NV) to restrict how websites can market to those younger than 13 — they don’t require much in the way of technical enforcement. If a website visitor clicks “Yes” or types in a date suitably far in the past when they’re asked if they’re over a particular age, that’s usually legally good enough.

Many parents, several of whom are young enough to remember firsthand how meaningless those age verification systems truly are, would like the internet to do better, especially now that it’s in their children’s hip pockets. Politicians, in response, would like to take credit for any improvements that might be made toward meeting that desire.

Responding to incentives, then, lawmakers in Utah and Louisiana recently passed stringent age verification laws for pornography. That, in turn, has led to the creation or passage of similar legislation in other states. Additionally, starting next year, minors in Utah will be required to gain parental consent before creating social media accounts — and social media platforms, in turn, will be required to give full access to a minor’s account to their consenting parents.

Seeing how successful state lawmakers have been at improving their political fortunes by thinking of the children, lawmakers in Congress are now getting in on the act. S.1409, otherwise known as the Kids Online Safety Act (KOSA), has been sitting with the Senate Committee on Commerce, Science, and Transportation — and, by extension, the desk of committee member Sen. Jacky Rosen (D-NV) — since May. Since then, it’s picked up 46 co-sponsors (that’s nearly half of the Senate), including Sen. Elizabeth Warren (D-MA) and Sen. Josh Hawley (R-MO).

No, I didn’t have the liberal Democratic senator who ran for president on “big structural change” co-sponsoring a bill with the Republican senator who raised a supporting fist toward the Jan. 6 protestors before he bravely ran away on my bingo card, either. But as I said at the start, defending children — or, at the very least, not being painted as being opposed to defending children during the next election cycle — is quite politically popular.

Unfortunately for both state and federal lawmakers, to say nothing of the voters cheering their efforts, it’s always going to be more difficult to verify someone’s age on the internet than it is to card someone before they buy cigarettes or beer.

Imagine for a moment that a minor attempts to buy a beer in a liquor store. The clerk asks for the minor’s identification. The minor provides it, demonstrating they’re not old enough to purchase the beer. Or the minor provides an obviously fake identification. The clerk kicks them out of the store.

Sounds easy enough. Let’s play out the same scenario on the internet.

Imagine that someone attempts to buy a beer in a liquor store. The clerk asks for the customer’s identification. The customer provides it, then quietly vanishes and is replaced with someone else. The clerk can’t see the customer, but the identification says the purchaser is old enough to drink so the clerk sells the beer.

This scenario simulates using, for example, a streaming service on an internet-enabled smart television. If a parent unlocks the television and walks out of the room, the television has no way of knowing a minor now has control of the remote.

It is technically possible to fix this flaw, in much the same way it’s technically possible to build a nuclear bomb powerful enough to destroy the plane that drops it before it successfully flies away from the explosion. We could, for example, digitally simulate sitting in front of a store clerk before you buy something by requiring users accessing age-restricted websites to turn their cameras on while they’re on each site.

This, however, repeats the same logic that led to the widespread deployment of online exam proctoring spyware, including the use of algorithmic facial recognition and room scanning software, during the pandemic. That decision led to a well-publicized series of failures and abuses that demonstrated remote monitoring software’s obviously inherent flaws to an entire nation of parents forced to witness them firsthand in their children’s bedrooms.

If we’re not comfortable installing cameras on our various smart devices and leaving them on for whomever might be looking through them, we could instead digitally simulate the other half of a retail card check. Simply require users to type in their driver’s license or identification card number, or perhaps even submit a scanned copy, before they interact with an age-appropriate website. 

This approach, however, would require providers of age-restricted websites to securely receive and potentially store identification card information. As Nevada’s casinos recently demonstrated, that’s easier said than done. 

Also, again, there’s no guarantee that the person providing the identification data is providing their own personal identification data. A minor could just as easily borrow a parent’s identification card — most children know their parents’ full names, birth dates and addresses already. All they have to do is memorize an identification card number.

Another fundamental issue that state and federal laws leave unresolved is that each parent — and each politician — disagrees on what content, precisely, children should be protected from on the internet.

KOSA, for example, requires minor-accessible sites to use methods consistent with evidence-informed medical information to take reasonable measures in their design and operation to prevent a variety of mental health disorders. The definitions of “evidence-informed” and “mental health disorders” in KOSA, meanwhile, are derived from the work of the American Psychological Association. 

Despite the American Psychological Association’s recent support for gender-affirming care, however, one of KOSA’s Republican co-sponsors bragged about how the bill could be used to prevent children from accessing information about transgender or gender-affirming care.

Though the co-sponsor provided incorrect information to their supporters regarding the statutory content of KOSA, they didn’t necessarily lie about the actual effect the bill may have once passed. KOSA offloads much of its enforcement duties to state attorneys general, many of whom are elected by the public and supported by groups that lobby for attorneys general to use KOSA (or any other law casually lying around, First Amendment be damned) to keep content objectionable to conservative social mores away from children. 

That’s why, regardless of KOSA’s statutory contents, many of the bill’s opponents, including the Electronic Frontier Foundation, the American Civil Liberties Union and the Center for Democracy and Technology, expect KOSA to be used as yet another tool by overzealous prosecutors to push politically undesirable speech off the internet. 

Many conservative states are already suing social media companies for various alleged legal infractions. Utah, for example, recently sued TikTok and the Supreme Court will soon be reviewing Texas’ and Florida’s social media regulations following attempted prosecutions under those laws. If such lawsuits continue, many internet services may follow Pornhub’s example and simply refuse to serve anyone represented by especially litigious attorneys general regardless of whether they’re adults or not — and also regardless of whether the service would actually win in court if they spent the time and money to defend themselves.

That, in turn, brings up the most serious issue with KOSA and the various state laws seeking to regulate the internet “for the children.” 

Any law that mandates widespread age verification is likely unconstitutional since mandatory age verification systems prevent adults who are unable to navigate those systems from viewing content they’re legally and constitutionally allowed to view. Additionally, Americans have a fundamental right to communicate anonymously with each other. Since strict age verification systems also verify the identity of users, requiring their use infringes upon that fundamental right.

This isn't just my opinion, nor is it just the opinion of TechFreedom and the Free Speech Coalition. The Supreme Court itself expressed this opinion in both Reno v. ACLU (former attorney general Janet Reno, not the city) and Ashcroft v. ACLU

Additionally, the First Amendment doesn’t just protect non-pornographic speech that mitigates against mental health disorders and discourages addiction-like behaviors. For better and worse, it protects all speech, even the sort of speech we’d prefer our children not to be exposed to. Laws that make it unnecessarily difficult for adults to create and consume each other’s speech, even if those difficulties are created to protect children, seldom survive the strict scrutiny required for statutory speech restrictions to pass constitutional muster.

The Kids Online Safety Act, as well as the more aggressively censorious laws being passed in various state legislators to punish social media companies, are all bad laws. They’re likely unconstitutional, they’re technically infeasible and they threaten our personal privacy.

I just hope the Supreme Court agrees with me this year.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky or email him at [email protected].

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