KOSA and Other Bad Internet Bills

The Kids Online Safety Act (KOSA) has been much in the news lately, and OTW Legal has been receiving inquiries from understandably concerned users. We thought it would be worthwhile to provide some information on KOSA and also a rash of other bad internet bills that have been proposed around the U.S. It’s been, unfortunately, a busy summer – and now that Congress is back in session it’s time to take action!

The tl;dr is that the OTW and AO3 are not currently implicated by KOSA and many of the other bills because of our nonprofit status (most of the proposed laws only apply to for-profit institutions). This means the operations of the OTW and the AO3 wouldn’t be directly impacted by these bills. However, that doesn’t mean there isn’t reason to be concerned just generally about these bills and the internet environment they would create, so, if you’re in the U.S., you can contact your elected representatives. More information below!

KOSA

KOSA is presented as a bill “to protect the safety of children on the internet,” but that’s not what it accomplishes. Instead, the bill would basically make “covered platforms” liable if they fail to design their platforms to prevent users under the age 18 from exposure to a wide amount of content designated as harmful to children. The AO3 is not a covered platform under this bill, but lots of platforms relied on by kids and fans are for-profit and would be affected by KOSA.

There are a number of concerns about the bill:

First, the content that must be kept away from minors is often vaguely defined. This will inevitably lead to censorship as platforms will err on the side of blocking information to avoid liability.

Second, because platforms only have to avoid exposure to minors, this encourages platforms to verify the ages of all of their users – conduct that would detrimentally affect the ability to be anonymous or pseudonymous online.

Third, it isn’t actually the platforms who get to decide whether the content is harmful to kids; rather, the bill would leave this decision up to the Federal Trade Commission and the individual states. Given that many states have begun advancing theories that information about racism, sexism, sexual and gender identities, and reproductive health is all harmful to children, this could result in widespread censorship of such information under this law.

Sponsors and supporters of this bill have stated publicly that they see it as an anti-LGBTQ+ measure and that if it passes,they intend to use it to discourage online communication that would help young LGBTQ+ people.

Finally, it’s likely that the censorship this bill encourages would affect not just minors but all internet users, as age verification is notoriously difficult online and covered platforms might therefore strive to be cautious and censor all such information to avoid liability.

OTW Legal has directly communicated its opposition to this Bill to Congress. But there is more you can do. The Electronic Frontier Foundation has more detailed information about this bill. It also explains how you can oppose it. Teen Vogue also has a good write-up of the bill. You can also read the text of the bill for yourself.

Other Bad Bills Around the Country

This summer has unfortunately been a really active one for states quickly passing a number of troubling internet laws, and there are still more in the pipeline. There are also some other bad proposed federal laws floating around. Many of these laws are briefly summarized below. If you’re a resident of one of the states below, you can also make your voice heard to your state representatives. Bad Internet Bills has a lot of great resources to help you get involved in protesting these bills. Further information is provided below.

1. Federal EARN IT Act and STOP CSAM Act: The EARN IT Act isn’t really new, in that it first showed up in 2020. It wasn’t popular and it was dropped but now it’s back. The bill claims to be about the sexual exploitation of children, but it is worded broadly in such a way as to threaten online privacy and encourage censorship of marginalized communities. In this way, it is very similar to the STOP CSAM Act. Both bills would impose liability on websites for containing certain material, even without that websites’ knowledge, the acts will encourage the same sort of over-policing and censorship that KOSA would promote, probably aimed at speech about reproductive health, gender identity, and sex and sexuality. Also, since the liability could be imposed even when the websites didn’t know any material was there, it encourages websites to proactively scan all content, creating an atmosphere of surveillance on internet platforms and driving platforms out of business if they can’t afford to do that kind of monitoring. Here, too, OTW Legal has communicated our opposition to these bills, but you can help. You can read more about the EARN IT Act’s problems; the STOP CSAM Act’s problems from the EFF; and you can read the texts of both bills. There is also some information on how you can oppose the EARN IT Act and the STOP CSAM Act.

2. Federal RESTRICT Act: You may have heard the RESTRICT Act referred to as a “TikTok ban.” Among other things, it provides the executive branch with broad powers to take actions to mitigate national security risks posed by internet services with any ties to foreign adversaries. While the OTW and AO3 do not fit the definition for such a service, fans may be interested in the statute because of the free speech implications on their continuing use of TikTok, for instance. Because the statute is vaguely worded to permit executive prohibition in poorly defined circumstances, its future impact beyond TikTok could be great. Find out how to oppose the RESTRICT Act.

3. Federal Cooper Davis Act: This act would require social media platforms and other providers of internet services to report to the government certain transactions suspected to involve fentanyl, methamphetamine, and other counterfeit controlled substances. The reporting requirements, which would include user identity and location, kick in when the platform has a reasonable belief that a controlled substance transaction might be planned. In theory, this sounds good. In practice, though, this raises privacy concerns and also encourages platforms to monitor user communications to avoid possible liability for failure to report. Such monitoring would likely place disproportionate attention on the communications of people of color and other marginalized communities. You can find out how to oppose the Cooper Davis Act.

4. New Jersey A5069: New Jersey is considering a KOSA-like bill prohibiting practices by social media platforms that cause harm to children. While the law would not affect the OTW because of its nonprofit status, it carries similar harmful implications as KOSA. The bill has passed the New Jersey Assembly but is still under consideration in the New Jersey Senate. If you are a New Jersey resident, you can voice your opposition to the bill by contacting your state senator..

5. Maryland’s Age-Appropriate Design Code Act: Maryland is considering a law that would require businesses providing online services not to do anything detrimental to a child. As has been noted, such a vaguely-defined term can be wielded as a censorship tool that stifles online communication. It doesn’t apply to nonprofits like the OTW. If you are a Maryland resident you can contact your representatives about this bill.

6. California’s SB-680: This proposed bill is similar to KOSA, in that it makes social media platforms liable for designing services that cause harm. Again, this law would not affect the OTW because it doesn’t apply to nonprofits. The bill is currently being debated and has not yet passed. If you’re in California, you can voice your opposition to the bill by contacting your local representative.

7. California’s Age-Appropriate Design Code Act: This bill passed last year but has not yet gone into effect. Similar to the Maryland bill described above, it requires businesses providing online services not to do anything detrimental to a child. Like Maryland’s bill, this bill does not affect the OTW as it does not apply to nonprofits. The bill, has been challenged in court.

8. Utah’s Social Media Regulation Acts: Utah has recently passed a bill that requires social media companies, starting next year, to enact age verification on all accounts, require parental consent for minors under the age of 18 to be on social media, provide parents or guardians full access to all social media accounts held by a minor, and block access by minors to social media between 10:30pm and 6:30am, among other requirements. Obviously this bill has a number of troubling implications, and it can be interpreted to apply to the AO3 (although we would argue that it shouldn’t). The bill has already been passed but Utah is accepting input so that may be something concerned users can participate in.

9. Ohio’s Social Media Parental Notification Act: This recently passed bill would require social media companies, starting next year, to require parental consent for any user under the age of 16. Like the Utah bill, there are arguments that this bill, if passed, could apply to the AO3. (The bill text starts at the bottom of page 622).

10. Arkansas’s Social Media Safety Act: Arkansas has recently passed a bill that requires social media companies, starting in September, to require age verification and the consent of a parent or guardian if the account holder is a minor under the age of 18. The OTW is not covered by this bill as a nonprofit. However, it has the same troubling implications as the other age verification bills. A trade association for internet companies including Meta, TikTok, and Twitter has sued in federal court to block this bill from going into effect. The ACLU and the Electronic Frontier Foundation have filed a brief in support of blocking the law. (Read more about the lawsuit.)

11. A bill was proposed in Texas requiring age verification and the prohibition of any minor under the age of 18 being allowed to have a social media account. The bill did not define “social media platform” and so it was unclear who would be covered under this bill. The bill was introduced and referred to committee, but it was not acted upon before the legislature adjourned. Therefore, it has not been passed. We will continue to monitor if the bill becomes active again. (Read the text of the bill.)

You might be wondering why the OTW doesn’t do even more itself to actively oppose these bills right now. As a nonprofit, there are severe limits on how (and how much) the OTW is allowed to engage in lobbying. What we can do is encourage people to oppose these bills by voicing their concerns to their elected representatives! When appropriate, the OTW also participates in amicus briefs, which are briefs in support of positions in lawsuits that would benefit fans and fan creators.

If these bills do pass –- and we hope they don’t! -– we would look for opportunities to work with allies to file amicus briefs and launch other challenges to them. You can read more about OTW Legal’s work, including amicus briefs we’ve filed on our website.

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The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.