As the Kids Online Safety Act moves forward, what are its real intentions—and most likely impacts—for Missouri and Kansas?

The Kids Online Safety Act (KOSA) was introduced by Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) as a remedy to hold large technology companies accountable for harming minors and youth across the country—a noble cause to many. // Photo by Adobe

A growing slate of senators and representatives in Congress are throwing their support behind a controversial internet safety proposal, causing a degree of significant alarm among civil society organizations across the country. The Kids Online Safety Act (KOSA) was introduced by Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) as a remedy to hold large technology companies accountable for harming minors and youth across the country—a noble cause to many. 

President Joe Biden announced his support for KOSA over the summer, saying, “Pass it, pass it, pass it, pass it, pass it.” KOSA also has a surprising slate of bipartisan co-sponsors. Sen. Roger Marshall, the junior Republican senator representing Kansas, is one of those sponsors. Others in the senate delegation for both Kansas and Missouri have remained quiet on the status of the bill. 

However, it is a possibility that the legislation could find a pathway to adoption in a bitterly split Congress. But if KOSA becomes law, critics are concerned that its provisions could be used to censor forms of online speech that are protected by the First Amendment—especially content that deals with LGBTQIA+ subject material, access to reproductive healthcare information, and content supportive of trans youth, adults, and their families seeking out gender-affirming care options in their local communities. A review of the legislation describes what could be a repressive system.

KOSA, in its current form, is worded in a manner that grants significant enforcement power to state attorneys general. Under the legislation, web platforms—primarily social media networks that are popular among young people—would result in the collective of more sensitive personally identifiable information for minors and adults. The definition used in the Kids Online Safety Act for “covered platforms” happens to include “a social media service, social network, online video game (including education games), a messaging application, video streaming service, or an online platform that connects to the internet and that is used, or is reasonably likely to be used, by a minor.” Critics point out that this is an incredibly broad definition. For example, the free-market R Street Institute argues such a definition serves as “a de facto regulation on the entire internet.”

Covered platforms would be subject to a joint enforcement framework between attorneys general and the Federal Trade Commission (FTC). The FTC would simply promulgate regulations in line with KOSA upon the companies that own the various platforms covered by the statute. However, there is a concern that giving the state attorneys general, including ones in the states dominated by Republicans, the ability to enforce KOSA at the state level could cause harm to all LGBTQIA+ communities online and in real life. Attorneys general are granted power to bring civil action on behalf of their respective states against platforms they would construe as violating the act and for failing to uphold a duty of care to prevent minors from viewing certain material on the internet.

The duty of care outlined in KOSA requires platforms to act “in the best interest” of a user who might be identified as minor to mitigate and prevent that individual from viewing content that could be viewed as potentially harmful. Categories of potentially harmful content that are under mitigating requirements could include material that could lead to minor self-harming or being inflicted with mental and behavioral health conditions, including substance abuse or suicide. A part of that requires the prevention and mitigation of content that could encourage behaviors that are “addiction-like” and could lead to bullying, violence, or harassment, promote the use of illegal drugs, or lead to sexual exploitation and abuse.

While some of this potentially harmful content is clear, much of it is extremely broad and varies on a case-by-case basis, and by what sort of platform is under scrutiny? Because there is no narrow definition of “potentially harmful” content, civil liberties groups have come out against KOSA on the grounds that it could be used to discriminate against forms of speech that are controversial and could directly harm LGBTQIA+ youth, particularly trans youth, with the power granted to attorneys general to bring civil actions. 

Sen. Marshall’s office failed to return our request for comment. The Pitch additionally contacted the offices of Marshall’s colleague, Sen. Jerry Moran of Kansas, and the Missouri delegation to the U.S. Senate, Sens. Josh Hawley and Eric Schmitt. All four senators are Republicans who’ve previously voted against LGBTQIA+ rights, the country’s largest technology companies, and are ideologically aligned with groups that view transgender being synonymous with pornography.

The intention of our queries was to understand how the senators for both states would vote since KOSA is a bill originating in the Senate. A pathway to adopting the bill would likely include all four, including Sen. Marshall, voting in favor of the bill to advance it to the House, where it is also expected to be adopted. As already noted above, the Biden White House supports KOSA.

The conservative Heritage Foundation, a think tank, has indicated that they support KOSA because it could be used to “protect kids” from transgender subject matter online. In fact, the organization permitted one of their research fellows, with an intern, to publish an opinion column in The American Conservative that ostensibly links social media platforms to “turning children” trans.

More recently, the foundation and a coalition of conservative groups released a treatise on policy that they claim would be adopted by a conservative president if the Republicans win in the 2024 general election. In the document, they additionally link so-called “transgenderism” to what they define as “pornography,” and that in all of its forms should be outlawed and blocked from the protections of the First Amendment. This has been woefully underreported until recently. The four senators representing Kansas and Missouri, including several representatives in the two state’s Washington, D.C., delegations, are ranked highly on Heritage’s legislative scorecard.

KOSA was introduced at the end of the last legislative session in 2022. The bill died, but it didn’t see its end as a bill without the filing of a joint letter signed by over 90 organizations ranging in socio-political ideological alignment. Led by the nonprofit American Civil Liberties Union, the groups said that the version of the bill at the time would lead to “effectively forcing providers to use invasive filtering and monitoring tools; jeopardizing private, secure communications; incentivizing increased data collection on children and adults.”

Many of the organizations that signed the initial letter, dated back to November 2022, are still opposed. The Pitch reached out to the Kansas and Missouri state affiliates of the American Civil Liberties Union (ACLU) for comment, but spokespeople for both deferred to the national ACLU.

“The ACLU remains strongly opposed to KOSA because it would ironically expose the very children it seeks to protect to increased harm and increased surveillance,” said Cody Venzke, the senior policy counsel for the ACLU, in a statement to CNBC.com when the bill was reintroduced to the U.S. Senate floor in May. In an executive session focused on the bill held by the Senate Commerce Committee in July, Blackburn and Blumenthal managed to get the measure advanced with amendments. But opponents were still skeptical. Luckily, Sen. Ed Markey (D-MA) voiced his concern over how KOSA could be used to target LGBTQIA+ youth and censor forms of speech that some attorneys general, including Republicans who have politically and legally challenged the rights of trans youth and adults. Missouri Attorney General Andrew Bailey and Kansas Attorney General Kris Kobach are two such individuals, given their problematic track records litigating against trans rights in various formats. But that’s beside the point of concern.

In a recent viral video posted to social media, Sen. Blackburn was interviewed by the socially conservative Family Policy Alliance. This organization is based in Colorado Springs, Colo., and is affiliated with the Focus on the Family, a far-right fundamentalist Protestant group. Blackburn, speaking on social media regulation to protect children, touted KOSA as a way of “protecting minor children from the transgender in this culture.” The video was posted only a few weeks ago, but Blackburn was filmed during an event held by the Palmetto Family Council in March.

At this time, Blackburn was still pitching KOSA as a means to require platforms to regulate the access to content that some attorneys general would consider “harmful,” regardless of it being medically necessary. Since then, Blackburn and Blumenthal have walked back many of these claims. For example, Sen. Blumenthal appeared in an interview with the Washington Blade, a pro-LGBTQIA+ publication based in the nation’s capital, indicating that he has worked with many organizations and individuals—including some who signed the initial letter in 2022—and got it to a point where the language is “tightened.”

“I would never put my name on any bill that targets or disparages or harms the trans or LGBTQ community,” Blumenthal told the Blade. “A lot of very smart and careful people have reviewed its language, and they and I have worked to make it as rigorous and tight as possible.”

A spokesperson for Sen. Blumenthal sent The Pitch a canned response.

“The Kids Online Safety Act does not target or censor anyone, including members of the LGBTQ community,” Blumenthal said in this statement. Note that this was the same one sent to multiple news organizations after the video of Blackburn saying that it would be used to harm and censor “the transgender” was posted. Blackburn’s office did not return requests for comment.

Jason Kelley, the activism director for the Electronic Frontier Foundation (EFF), told The Pitch that KOSA, even as amended, is still problematic. “The duty of care in KOSA leads to all other harms—it’s like the first domino, and it’s the heart of the bill, which is why changing other language around the edges hasn’t swayed many groups, including EFF, to drop their opposition.”

The Blumenthal spokesperson reiterated that the duty of care, which Kelley takes particular issue with, was amended to cover the concerns of LGBTQIA+ advocates: “Our goal in setting out a defined list of mental health harms was to be specific about the harms that were highlighted repeatedly in our hearings and that we want the social media platforms to focus on addressing.”

“Passing this duty of care into law will create a tidal wave of censorship online, as even the smallest online forums will have to take action against content that politicians believe will cause minors ‘anxiety,’ or ‘depression,’ as examples,” says Kelley. “The question of what content young people should see online is tricky—it changes as people age, and it changes for each teenager.”

However, language in the amended bill defines the covered youth as those 13 years and younger. Fight for the Future, a digital rights and civil liberties organization run by Evan Greer, additionally has not shifted its opposition against KOSA. In a recent campaign backed by Greer and Fight for the Future, parents of trans and gender-expansive children published a letter to elected officials in Congress and the organizations backing KOSA asking to block the bill. 

“We agree there is tremendous urgency around holding social media giants accountable and cracking down on their abusive business practices. That’s why we are imploring you to abandon KOSA, which is deeply flawed and faces overwhelming opposition from human rights, LGBTQ, racial justice, and civil liberties organizations,” the letter reads.

The parents also offer an olive branch by encouraging the senators to work with the parents and families of trans children on a legislative measure that is not as invasive: “Please listen to us. Our kids’ lives are at stake.”

Concerns don’t stop with the EFF or Fight for the Future. PROMO Missouri, a statewide NGO advocating for LGBTQIA+ rights in the local area, was one of the over 90  organizations to sign the opposition letter in November 2022. Even with amendments to the bill this legislative session, PROMO’s director of communications, Robert Fischer, still expresses opposition to the proposal.

“We still have deep concerns over KOSA as we’ve seen state governments across the country, including Missouri, aim to remove access to critical educational material, conversations around gender identities and sexual orientations in schools, and LGBTQ+ resources,” he said. “These are items every child should be able to access, and KOSA puts access to information in direct jeopardy.”