Imagine:
You are a grieving parent whose child lost their life due to an unsafe tech platform. Every single day, you live with the crippling pain of your child’s absence.
You know your child’s death was avoidable. If the tech industry had taken reasonable care to design their products safely, your family and your heart would still be whole.
But you can’t bring your child back. The only thing you can do is try to ensure no other parent suffers what you have suffered.
So, you dedicate yourself to the mission of promoting online safety. For years, you advocate for legislation that would hold the tech industry to a basic standard of reasonable care—a standard that every other industry is held to.
As the years go by, your tireless work begins bearing fruit. The legislation you’re backing has garnered incredible bipartisan support. It has more than enough votes to pass in the Senate. You are so close!
And then comes the unthinkable blow … The House takes the bill and guts it of all meaningful protections.
What’s left is a bill that would do the opposite of what you were fighting for. It does nothing to make the online world safer for children, and it gives tech companies even more license to act with impunity.
Imagine this heartbreak … Of seeing everything you worked for in your child’s name being polluted beyond recognition. And knowing that this means countless more parents will suffer your unfathomable pain.
This is the nightmare that dozens of parents are living today. This is the reality of what the U.S. House of Representatives has done to the Kids Online Safety Act.
The House Guts Key Safety Protections from KOSA
The Kids Online Safety Act (KOSA), up until now, was the most comprehensive bill for online child safety that we had. And the Senate’s version of the bill still is. The Senate’s KOSA establishes a “Duty of Care,” which would require that tech companies whose platforms are likely to be accessed by children take “reasonable care” when designing the platform to prevent and mitigate certain harms to children.
The Duty of Care was the most legally actionable aspect of KOSA—the part that actually gave the bill teeth.
And now? The House has stripped out the Duty of Care in its version of KOSA. It also stripped other key protections, such as the ability for children to opt-out from predatory algorithms, and the requirement for tech companies to provide transparency reports on minors’ data usage and child safety measures.
Some are arguing that removing the Duty of Care is necessary so KOSA won’t be struck down as unconstitutional. But KOSA has already been carefully revised several times to ensure its constitutionality.
For example, the Duty of Care was already significantly narrowed in the Senate version and now only encompasses a clear and specific list of harms to children. This list is not controversial: Eating disorders, substance use disorders, suicidal behaviors, depressive disorders, anxiety disorders, compulsive usage, severe physical violence, severe online harassment, child sexual exploitation, financial scams, or the sale of narcotic drugs, tobacco products, cannabis products, gambling, or alcohol. You can read a full analysis of exactly what KOSA’s Duty of Care does and doesn’t do here.
As things stand, there is no good reason for what the House did in stripping the Duty of Care and other key protections.
The House Adds “Pre-emption” Clause to KOSA that Eviscerates State Legislation on Child Online Safety
As if the gutting of these protections weren’t bad enough, the House added a clause to KOSA that transforms it from a child protection bill to a Big Tech protection bill. This is a pre-emption clause forbidding any state legislation aimed at protecting children online. In other words: states would not be allowed to pass new child online safety laws, and even laws that have already been passed could be rendered null.
Considering that Congress has not passed a single federal law for child online safety law in 20 years, and any headway on this issue has been at the state level … this is simply terrifying.
Worse, this pre-emption language is included in 11 other bills under consideration in the House—all of which are ironically masquerading as child online safety bills.
The argument being put forth for why this pre-emption clause is necessary, is that Congress must prevent a “patchwork” of different, sometimes contradictory state legislation that would be difficult for the tech industry to keep up with. But this argument is misguided at best, flagrantly disingenuous at worst.
Advocates for the Tech Industry have tried for the past two decades to constrain Internet regulation to the Federal, but this is only a ploy to escape regulation altogether. Tech companies use sophisticated geo-targeting to serve us all personalized ads and collect data based on our location. Certainly, they can adjust settings based on user location. This is the industry of Artificial Intelligence, yet they argue with a straight face that varying state regulations are too much for them to handle. Moreover, tech companies have already successfully navigated differing state regulations in other contexts, for example: privacy laws, gambling websites, and now age verification for pornography websites.
It is ludicrous to assume the tech industry, the most powerful industry in the world, cannot contend with varied state legislation. We cannot keep protecting Big Tech’s bottom line over child safety.
Big Tech already enjoys shocking privileges that no other industry enjoys—specifically, broad immunity from liability under Section 230 of the Communications Decency Act. Now, the House wants to give them more protection? They want to take a bill that was intended to protect children, and use it to further shield this multi-trillion dollar industry, that already operates with shocking impunity?
It is impossible to imagine a bigger slap in the face to grieving parents and deceased or victimized children. This is the Section 230 playbook all over again.
The House must stop doing Big Tech’s bidding and reject this warped version of KOSA, as well as all the bills containing pre-emption language for state online safety legislation. The lives of our children depend on it.
