The U.S. Senate may vote on the highly contentious Kids Online Safety Act (KOSA) by the end of July, according to the Associated Press. This development comes despite recent warnings from the Congressional Research Service (CRS) that age verification laws, such as those potentially mandated by KOSA, could infringe upon the First Amendment.

KOSA, a bipartisan initiative introduced by Senators Richard Blumenthal (D-Conn.) and Marsha Blackburn (R-Tenn.), aims to enhance online safety for children. However, civil liberties organizations argue that the bill could undermine online anonymity and lead to censorship. Despite these concerns, the bill continues to garner support, including from Senate Majority Leader Chuck Schumer (D-N.Y.) and the Biden administration.

Josh Golin, executive director of Fairplay, a nonprofit advocating against manipulative marketing tactics targeting minors, expressed optimism about the bill’s progress.

“The reason it has not come to a vote yet is that passing legislation is really hard, particularly when you’re trying to regulate one of the, if not the most powerful industry in the world,” Golin told the Associated Press.

Opposition to KOSA is also notable. Senator Rand Paul (R-Ky.), known for his civil libertarian stance on free expression issues, and Senator Ron Wyden (D-Ore.), co-author of the Communications Decency Act’s Section 230, oppose the bill. Major civil liberties groups, including the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation, argue that KOSA could lead to the censorship of legal content and infringe on free speech.

CRS recently published a report, “Identifying Minors Online,” which highlights the constitutional challenges associated with age verification laws. Authored by Clare Y. Cho, Ph.D., the report cautions that such laws could violate the First Amendment.

“Courts have ruled that some of these state laws likely violate the First Amendment,” Cho wrote. She also noted that federal laws aimed at protecting minors online have faced similar constitutional challenges.

KOSA does not explicitly mandate nationwide age verification but requires platforms to implement measures to protect minors. This requirement has raised concerns about potential violations of user privacy and free speech. The California Age-Appropriate Design Code Act, a state-level iteration of such measures, was recently declared unconstitutional by federal courts.

The ongoing legal debates further complicate the issue. The U.S. Supreme Court has agreed to review Free Speech Coalition et al. v. Paxton, a case challenging Texas House Bill 1181. This Texas law mandates age verification for adult websites, which the Free Speech Coalition and other plaintiffs argue violates users’ First Amendment rights. The ACLU is co-counsel in this case, emphasizing the significant constitutional implications of such legislation.

What to Know About the Kids Online Safety Act

The Kids Online Safety Act (KOSA) is a bipartisan bill that aims to protect children from the harms of social media, gaming sites, and other online platforms. This legislation is seen as a necessary update to internet safety laws, which have not been significantly revised since the Children’s Online Privacy Protection Act (COPPA) was passed in 1998. The bill has garnered substantial bipartisan support, but its passage is still uncertain.

Key Provisions of KOSA

KOSA seeks to implement several measures to enhance the safety of children online. These include:

1. Age Verification: Requiring platforms to verify the age of users to ensure that children are protected from inappropriate content.
2. Duty of Care: Obligating tech companies to design their platforms with the safety of children in mind, actively working to prevent the exposure of minors to harmful content.
3. Content Moderation: Mandating that platforms take responsibility for removing content that can harm children, such as cyberbullying, sexual exploitation, and other forms of abuse.
4. Transparency and Accountability: Requiring platforms to be transparent about their content moderation practices and to report on their efforts to protect children regularly.

The ACLU, the Electronic Frontier Foundation, the Free Speech Coalition, and others are concerned that it would violate the First Amendment.

Even with the revisions that stripped state attorneys general from enforcing its duty of care provision, EFF calls it a “dangerous and unconstitutional censorship bill that would empower state officials to target services and online content they do not like.”