Senator Blumenthal Pretends To Fix KOSA; It’s A Lie

Policy

from the blumenthal's-lies-will-kill dept

As lots of folks are reporting, Senator Richard Blumenthal, this morning, released an updated version of the Kids Online Safety Act (KOSA). He and co-author Senator Marsha Blackburn are also crowing how they’ve now increased the list of co-sponsors to 62 Senators, including Senators Chuck Schumer and Ted Cruz among others.

Blumenthal, as he always does, is claiming that all of the claimed problems with KOSA are myths and that there’s nothing to worry about with this bill.

He’s wrong.

He’s lying.

Senator Blumenthal has done this before. He did it with FOSTA and people died because of him. Yet, he won’t take responsibility for his bad legislation.

And this is bad legislation that will kill more people. Senator Blumenthal is using children as a prop to further his political career at the expense of actual children.

Blumenthal and his staff know this. There was talk all week that the revised bill was coming out today. Normally, senators share them around for analysis. They’ll often share a “redline” of the bill so people can analyze what’s changed. Blumenthal shared this only with his closest allies, so they could do a full court press this morning claiming the bill is perfect now while people who actually understand this shit had to spend the morning creating a redline to see what was different from the previous bill and to analyze what problems remain.

The key change that was made was to kill the part that allowed State Attorneys General to be the arbiters of enforcing what was “harmful,” which tons of people pointed out would allow Republican State AGs to claim that LGBTQ content was “harmful.” Indeed, that part was a big part of the appeal to Republicans beforehand who publicly admitted it would be used to stifle LGBTQ content.

Now, that “duty of care” section no longer applies to state AGs (who can still enforce other parts of the bill, which are still a problem). Instead, the FTC is given the power regarding this section, but as we explained a few months back, that’s still a problem, and it’s clear how that can be abused. If Donald Trump wins in the fall, and installs a new MAGA FTC boss, does anyone think this new power won’t be abused to claim that LGBTQ content is “harmful” and that companies have a “duty of care” to protect kids from it?

It also does not fully remove state AGs. They still have enforcement power over other aspects of the bill, including requiring that platforms put in place “safeguards for minors” as well as their mandated “disclosures” regarding children.

The new version of the bill also does pare back the duty of care section a bit but not in a useful way. It now is much more uncertain what websites need to do to “exercise reasonable care,” which means that sites will aggressively block content to avoid even the risk of liability.

And, of course, nothing in this bill works unless websites embrace age verification, which has already been repeatedly deemed unconstitutional, as an infringement of the rights of kids, adults, and websites. There is some other nonsense about “filter bubbles” that appears to require a chronological feed (even as research has shown chronological feeds lead people to see more false information).

Anyway, the bill is still problematic. If Blumenthal were actually trying to solve the problems of the bill he might have shared it with actual critics, rather than keeping it secret. But, the goal is not to fix it. The goal is to get Blumenthal on TV to talk about how he’s saving kids, even as he’s putting them at risk.

And Blumenthal’s “Fact v. Fiction” attempt to pre-bunk the concerns is just full of absolute nonsense. It says that KOSA doesn’t give AGs or the FTC “the power to bring lawsuits over content or speech.” But that’s misleading. As we keep seeing, people are quick to blame platforms as being responsible for “features” or “design choices” that are really about the content found via those features or design choices. It is easy to bring an enforcement action pretending to be about design, which is really about speech.

Also, the bill enables the FTC to designate what are “best practices” regarding kid safety, and what site is going to risk the liability of not following those “best practices.” And we’ve already seen the last Trump administration pressure agencies like the FCC and FTC to take on culture war issues. There’s no way it won’t happen again.

And this one really gets me. Blumenthal claims that no one should be concerned about the duty of care, while giving us all the reasons to be concerned:

The “duty of care” requires social media companies to prevent and mitigate certain harms that they know their platforms and products are causing to young users as a result of their own design choices, such as their recommendation algorithms and addictive product features. The specific covered harms include suicide, eating disorders, substance use disorders, and sexual exploitation. 

For example, if an app knows that its constant reminders and nudges are causing its young users to obsessively use their platform, to the detriment of their mental health or to financially exploit them, the duty of care would allow the FTC to bring an enforcement action. This would force app developers to consider ahead of time where theses nudges are causing harms to kids, and potentially avoid using them. 

“Theses [sic] nudges” indeed, Senator Finsta.

But, here’s the issue: how do you separate out things like “nudges” from the underlying content. Is it a “nudge” or is it a notification that your friend messaged you? As we’ve detailed specifically in the area of eating disorders, when sites tried to mitigate the harms by limiting access to that content it made things even worse for people, because (1) it was a demand side problem from the kids, not a supply side problem from the sites, and (2) by trying to stifle that kind of content, it took kids away from helping resources, and pushed them to riskier content.

This whole thing is based on a myth that social media is the cause of eating disorders, suicides, and other things, when the evidence simply does not support that claim at all.

The “fact vs. fiction” section is just full of fiction. For example:

No, the Kids Online Safety Act does not make online platforms liable for the content they host or choose to remove. 

That’s a fun one to say, but it only makes sense if you ignore reality. Again, in this very section (as detailed above), Blumenthal is quick to conflate potential harms from content (i.e., eating disorder, suicide, etc.) with harms of design choices. Given that Blumenthal himself confuses the two, it’s rich that he thinks those things are somehow cabined off from each other within the law.

Indeed, all the FTC or a state AG is going to need to do is claim that an increase in suicides or other problems is caused by “features” on the site, and to avoid risks and liability, the pressure is going to lead the sites to remove the content, since they know damn well it’s not the features that are the concern.

And, as the eating disorder case study found, because this is a demand-side issue, kids will just find other places to continue discussing this stuff, with less oversight, and much more risk involved. People will die because of this bill.

Another lie:

No, the Kids Online Safety Act does not impose age verification requirements or require platforms to collect more data about users (government IDs or otherwise). 

In fact, the bill states explicitly that it does not require age gating, age verification, or the collection of additional data from users.

This is wrong. First of all, the bill does set up a study on age verification, which is a prelude to directly requiring age verification.

But, more importantly, the bill does require “safeguards for minors” and the “duty of care” for minors, and the only way you know if you have “minors” on your site is to age verify them. And the only way to do that is to collect way more information on them, which puts their privacy at risk.

Blumenthal will claim that the bill only requires those things for users who are “known” to be minors, but then it’s going to lead sites to either put their head in the sand so they know nothing about anyone (which isn’t great) or a series of stupid legal fights over what it means to know whether or not a minor is on the site.

There’s more, but KOSA is still a mess, and because everyone’s asking my opinion of it and Blumenthal only gave early copies to friends, this is what you start with. Tragically, Blumenthal has strategically convinced a few LGBTQ groups to remove their opposition to the bill. They’re not supporting it (as some have reported), but rather their letter says the groups “will not oppose” the new KOSA.

KOSA is still a bad bill. It will not protect children. It provides no more resources to actually protect children. It is an exercise in self-aggrandizement and burnishes Blumenthal’s desire to be hailed as a “savior,” rather than looking for ways to actually solve real problems.

Filed Under: duty of care, enforcement, ftc, kosa, liability, marsha blackburn, nudges, protect the children, richard blumenthal