Evan Greer is the deputy director of the digital rights non-profit Fight For The Future.
Queer and trans people are facing unprecedented attacks across the United States. Five of us were just murdered at a queer nightclub in Colorado, right-wing militias are showing up with guns at drag events around the country, and GOP politicians are pushing laws that ban daytime drag shows, criminalize trans healthcare, and threaten to rip families with trans kids apart.
Unthinkably, in the final days of their majority in Congress, top Democrats are pushing a bill that would hurt LGBTQ kids and teens even more. Numerous reports indicate that Democratic leadership is trying to ram through the Kids Online Safety Act (KOSA) as part of the year-end, must-pass defense spending package.
KOSA wouldn’t make kids safer online. Instead, it would subject kids and teens to more surveillance, make them more vulnerable to hackers and creeps, and cut them off from valuable online resources and communities. KOSA would hurt LGBTQ kids the most, by empowering Republican attorneys general to crack down on important resources for trans and queer kids and teens like support hotlines, resources on gender affirming care, health information, mutual aid groups, fundraising efforts, and more.
First, let’s be clear about a few things. One: Big Tech companies are harming children. Surveillance capitalism and monopoly abuses hurt everyone, and kids are particularly vulnerable. Two: we do need urgent action from Congress and the Biden administration to crack down on the harmful business practices of companies like Google, Meta, Amazon, Facebook, and Apple. Three: many of the parents and groups advocating for KOSA are well-intentioned and looking to address real problems, like platforms designed to maximize engagement and algorithms driven by data harvesting that are manipulative and addictive. There are real stories of trauma and harm related to Big Tech’s reckless business practices.
But instead of actually protecting kids, Congress seems poised to use them as pawns to rush through legislation that will do more harm than good.
KOSA would create a broad “duty of care” legal requirement for companies to design their platforms with “the best interests” of kids in mind. That sounds reasonable in theory, but here’s the problem: there is no clear legal definition or global consensus of what that means. And the bill leaves it up to states attorneys general to decide what’s in the “best interests” of young people. Right-wing attorneys generals like Texas’ Ken Paxton and Arkansas’ Leslie Rutlege have made it crystal clear how they would use such power if it’s given to them: to attack trans and queer youth and crack down on online speech about abortion, health care, and LGBTQ rights. The hyperconservative Heritage Foundation is openly calling for KOSA to be used against the trans community.
This duty of care approach is foundationally wrong, and there is not much that could save it.
That’s because a duty of care is nebulous and is rarely certain until applied to specific facts and decided in court. That uncertainty allows right wing AGs to back into any definition that suits their political goals. We are already seeing language being stretched in this way, with drag shows falsely smeared as “grooming events” and medically recommended gender affirming care labeled as “child abuse.” Like we saw in the wake of SESTA/FOSTA, corporate platforms wouldn’t respond to KOSA by making their products safer, but by making the companies themselves less susceptible to legal risk. Platforms like Facebook and YouTube would much rather shut down spaces where LGBTQ+ youth gather online than fight expensive legal battles with politically motivated AGs.
The duty of care approach also poisons other aspects of the bill, potentially leading to more surveillance in a bill that is intended to protect children’s privacy. Under the bill’s current framwork, the only way for most platforms to comply with it would, ironically, be to increase surveillance of young people and collect more of their sensitive data. Invasive age verification measures are largely incompatible with anonymity, which is essential for global human rights and free expression. And third party vendors are champing at the bit to exploit these new requirements. One company is already saying they’ll provide biometric verification, which scans your face every time you visit a website in order to prove your age.
As written, KOSA could also prevent platforms from adopting end-to-end encryption, weakening the security of young users and exposing them to stalking and worse. Encrypted messaging is essential for LGBTQ people’s safety, and human rights groups have been highlighting its importance in the wake of the overturning of Roe v Wade, after Facebook handed over messages between a teenager and her mother being prosecuted under a draconian anti-abortion law.
KOSA’s requirement to provide parental tools at a platform level is also problematic as drafted because it provides multiple avenues of abuse against LGBTQ+ teens. For example, if a parent is hostile to a minor’s sexuality they could use these tools to prevent the minor from accessing information necessary for their mental and physical well-being. This may even extend to situations where a minor lives with a parent who is supportive, but their non-custodial parent requests and obtains control over the minor’s account. Who has custody and who has parental rights will be difficult, if not impossible, for platforms to figure out. There may even be situations where an abusive non-biological adult is able to gain control over a minor’s use of a platform, like an ex-lover of the minor’s parent. It could also impact non-minors, like trans teens who reach the age of majority and have to move out for their own protection. Their abusive parents could try to convince platforms that their child is still a minor to exert control over their behavior even as they try to escape.
Parental tools are easier to build into devices, which can be replaced in such situations, than platforms where accounts are often lifelong. Many platforms already offer parental tools, and many of them could be improved. But creating prescriptive requirements for invasive parental tools without any safeguards to prevent abuse will make kids less safe, not more.
That’s why last week, more than 100 human rights groups including the ACLU, GLAAD, GLSEN, National Center for Transgender Equality, American Library Association, and Access Now sent a letter to Congressional leaders opposing the inclusion of KOSA in the omnibus.
KOSA is a disaster and should be permanently shelved. But that doesn’t mean we should let Big Tech off the hook. We absolutely need lawmakers and regulators to act to protect kids and adults from manipulative algorithms, privacy intrusions, and online harms. And fortunately there are several bills that don’t have the same flaws as KOSA and would at least start to address Big Tech’s abuses. Congress should strengthen and pass the American Data Privacy Protection Act (ADPPA), a much more comprehensive privacy bill that protects everyone instead of narrowly focusing on kids, as well as the antitrust bills that crack down on Big Tech monopoly power, the American Choice and Innovation Online Act (AICOA) and the Open App Markets Act (OAMA).
I’m the parent of a tween. I worry about what my child will encounter as she explores the world and herself online. We all want to make the Internet safer for our kids. But also need policies that actually make sense, and that lead to the type of world we want our kids to grow up in. Our kids deserve to be safe. They also deserve to have basic human rights, and the ability to express themselves.
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