Kids and teens are constantly using technology to access social media. Whether to watch videos, engage with peers, play games, research, or for other uses, young people—especially teens and young adults—are accessing social media at eye-popping rates. 

Parents have become alarmed by the kind of content that minors are accessing on social media platforms. Young people are regularly exposed to adult content, inappropriate communications with adults, and dangerous or violent content. The desire to halt this is understandable. The question is how to craft legislation that balances safety with constitutional issues and practical limitations of any bill.

Congress seeks to pass legislation aimed at providing safety for kids online, but so far, proposed legislation misses the mark.

The Kids Online Safety Act 

The Kids Online Safety Act, or KOSA (S. 1748), has been introduced in the Senate several times, but failed to advance due to constitutional and free speech concerns. A recent House version passed two months ago, but it is materially different from the Senate version.

KOSA creates requirements for certain online platforms that pertain to content minors can access and shifts responsibility to online platforms when children are harmed. 

The bill does several key things:

  • Default Settings: Platforms are required to default to the highest privacy and safety settings for minors automatically.
  • Parental Controls: Platforms are required to create tools for parents and guardians to manage a minor’s time spent on an app, track privacy settings, and restrict purchases.
  • Algorithms: Apps and websites are mandated to turn off algorithmic recommendations, auto-play, and endless scrolling for young users.

While these might appear to be good solutions to mindless scrolling or worse, this bill will create significant issues for teens and adults.

Age Verification Minefield

Critics note that KOSA creates a backdoor age verification requirement that can be bypassed by children but erects barricades to adults online. In a letter, the American Civil Liberties Union explained: 

KOSA imposes obligations on platforms that turn on whether they know a user is a minor, but the bill defines knowledge as “knows or should have known.” This standard doesn’t require platforms to know for a fact that its users are minors because it allows courts and regulators to decide, after the fact, if a platform “should” have known a users’ age. Under this knowledge standard, the only sure-fire way for platforms to avoid liability is to verify a users’ age.

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Age verification also threatens the First Amendment rights of adults. Despite a First Amendment right to speak out and access information online, any adults who are unable to verify their ages (because they lack valid identification, face technological difficulties, or lack digital skills) would be shut out from apps and websites.

The Electronic Frontier Foundation further explains the legal trouble that KOSA can bring:

The problem is a website operator doesn’t need actual knowledge that a user is a minor to get in legal trouble. It applies when a platform “knows or should have known” a user’s age—a low, negligence-style standard of knowledge. If an online service gets it wrong, it’s going to be up to courts and regulators to decide, after the fact, if an online service “should” have known a user was 16.

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Most won’t be able to simply trust their users. They’ll have to collect more information about age, before any lawsuit or government action arises. Some companies may respond by requesting driver’s licenses or passports. Others will rely on age-estimation systems that attempt to guess users’ ages by looking at existing activity or doing facial scans. Existing estimation systems make mistakes when estimating children’s ages correctly, which is a big problem when that is the population KOSA is trying to protect. And the systems fail more frequently for people of color, people with disabilities, and trans and nonbinary people. 

Encourages Censorship

In aiming to shield minors from “harmful content,” KOSA may lead platforms to censor content that is meant to help teens avoid the very harms KOSA means to protect against. 

Banning young people from content that includes sexual exploitation and abuse, threats of physical violence, or the sale or use of narcotics, tobacco, cannabis products, gambling, and alcohol is admirable. 

However, what about forums that provide advice and resources on how to address or avoid illegal, dangerous, or unsafe activities? What if teens are messaging about drinking too much or inquiring whether a marijuana product is safe? 

Platforms would be under pressure to restrict or remove such content, even if we can agree that the intention was right.

Bottom Line

Good intentions are not enough to overcome policy flaws that could lead to failures. Congress would be wise to keep this in mind as policymakers consider KOSA and other kids online legislative proposals.