In a House Energy and Commerce Committee markup last week, many legislators announced their intentions to support the Kids Online Safety Act (KOSA) even though they disfavor certain provisions in the bill. Those concerns are justified—but the decision to pass the bill anyway is not. Passing legislation with the intent to revise and revisit is neither prudent design nor responsible policymaking.
House KOSA cosponsor Rep. Kathy Castor (D-Fla.) voiced support for the bill on the condition that any remaining issues be resolved at a later date. Similarly, Rep. Dan Crenshaw (R-TX) voted for the bill but is rightly concerned about empowering the Federal Trade Commission (FTC) to regulate algorithms that determine content recommendations.
Congress should have fixed these policy deficiencies in committee when it had the chance. Instead, Energy and Commerce kicked the can down the road, forcing the entire House Chamber to address the many unintended consequences, and risking that those needed changes go unaddressed.
Some provisions may be interpreted to increase viewpoint censorship. How, and to what extent, KOSA conflicts with First Amendment protections remains an open question. The details of implementation are still murky, and expanding the authority of the FTC to regulate content recommending algorithms remains a hotly debated and otherwise questionable decision. And even the legislation’s modest improvements to its “duty of care provision” are just that—modest. As in insufficient to correct the problem.
Earlier iterations of KOSA relied on a one-size-fits-all approach to harm reduction that makes platforms liable for vague requirements to prevent mental health disorders and behaviors. Fortunately, the post-markup version more specifically requires platforms to curtail inherently dangerous actions that would cause severe emotional disturbance, defined in the bill as a diagnosable mental illness that impairs functioning, or bodily harm. A modest improvement that clarifies some of the ambiguity that plagued previous versions of the legislation. But that change is entirely insufficient. Deciding whether content led to ”emotional disturbance” is subjective and likely to be debated in courtrooms—a costly proposition for taxpayers and the consumers that use these products and services.
Unfortunately, the fight over KOSA appears no closer to being resolved today than the first day it was introduced, yet the House Energy and Commerce gave it commendation by passing it out of committee anyway.
Rather than acting just to do something—anything!—Congress must refocus to act deliberatively and appropriately. The “pass it now and fix it later” attitude may fit some political rationalizations—but that approach makes for bad policy. American parents looking for help to protect their kids online are now left in a position where neither the advocates nor opponents of online safety legislation are happy with the current state of the legislation.
KOSA is designed to keep children safe online—a goal shared by everyone. But left largely unchanged, it still suffers the same problem now as it did before the markup hearing.
The House Energy and Commerce Committee missed their opportunity to protect kids instead of simply censoring the internet. Hopefully the details can be ironed out before legislation nobody likes becomes law.
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