KOSA Will Come To The Senate Floor On Tuesday, Senators Paul & Wyden Explain Why It’s Still Bad

On Thursday, as expected, the Senate voted for “cloture” on the extremely problematic Kids Online Safety Act (KOSA). The cloture vote is a procedural vote necessary to bring a full vote to the floor. Previously, attempts to move KOSA forward “by unanimous consent” could be (and were) blocked by objections from at least one Senator (often Senator Wyden).

The cloture vote, in effect, overrides such a block, and moves to have a second vote on the floor. In this case, the cloture vote won, 86 to 1, meaning the real vote will happen on Tuesday. The one “nay” vote was from Senator Rand Paul. It took some by surprise, but Senator Wyden voted yes on cloture.

It’s been widely reported that Schumer has been negotiating with Wyden on some changes to try to deal with the larger concerns with KOSA. In the end, some small, but important changes were made to the bill at the behest of Wyden, including explicit text that nothing in KOSA overrides Section 230.

My purely speculative guess is that the basic deal was that with this minor change, Wyden would agree to vote in favor of cloture, but could still vote against the actual bill next week. Indeed, immediately after the cloture vote, Wyden put out a statement about why he could not support the bill:

“After months of negotiations, the Kids Online Safety Act (KOSA) has been improved, thanks to hard work by Commerce Chair Cantwell and Leader Schumer. The changes that I, LGBTQ+ advocates, parents, student activists, civil rights groups and others have fought for over the last two years have made it less likely that the bill can be used as a tool for MAGA extremists to wage war on legal and essential information to teens.  

“I thank all of the advocates, parents, young people and concerned citizens that have raised their views about KOSA with me, both in support of the bill and with concern about its implications. 

“I strongly support elements of this bill, especially Senator Markey’s Children and Teens’ Online Privacy Protection Act, which will safeguard the personal information of young people online. Provisions regulating addictive design elements used by platforms to keep young people hooked are valuable safeguards that will make tech products safer. 

“Unfortunately, KOSA’s improvements, while constructive, remain insufficient. I fear this bill could be used to sue services that offer privacy-enhancing technologies like encryption or anonymity features that are essential to young people’s ability to communicate securely and privately without being spied on by predators online. I also take seriously concerns voiced by the American Civil Liberties Union, Fight for the Future, and LGBTQ+ teens and advocates that a future MAGA administration could still use this bill to pressure companies to censor gay, trans and reproductive health information.

“For these reasons, I cannot vote for this legislation.  

“However, if this bill is signed into law by the President, I look forward to working with my colleagues to conduct rigorous oversight of the FTC to ensure that my worst fears about this bill do not come true and that kids benefit from a safer internet.  

“Whatever happens to this bill, I look forward to working with my colleagues on other initiatives, including regulating harmful and manipulative platform designs, to tackle the vital topic of kids’ safety online. I also remain convinced that this effort must go hand-in-hand with passing a strong baseline privacy law for all Americans.”

And, thus, the underlying and still fundamentally dangerous bill is slightly less dangerous and the “trade” to improve the bill was that Wyden would vote for cloture. And that vote was effectively meaningless, since the cloture threshold would have been easily met even if Wyden had voted no on cloture.

The one nay vote, Senator Paul, also sent a “Dear Colleague” letter to the other Senators, and it’s one of the clearest, most straightforward explanations of why KOSA is bad. The letter is written in a manner that both Democrats and Republicans should be able to understand (i.e., it doesn’t engage in partisan culture war nonsense, but just spits facts).

Dear Colleague:

This week, the Senate will consider S. 1409, the Kids Online Safety Act (KOSA). While the intent of this legislation is laudable, the bill raises significant First Amendment concerns, imposes vague, undefined requirements on internet platforms, and empowers politically motivated enforcers to advance their own ideological interests to the detriment of the American people. I will be voting against this bill, and I encourage you to do the same.

KOSA would impose an unprecedented “duty of care” on internet platforms to mitigate certain harms associated with mental health, such as anxiety, depression, and eating disorders. While proponents of the bill claim that it is not designed to regulate content, imposing a “duty of care” on online platforms to mitigate harms associated with mental health can only lead to one outcome: the stifling of First Amendment protected speech.

Should platforms stop children from seeing climate-related news because climate change is one of the leading sources of anxiety amongst younger generations? Should they stop children from seeing coverage of international conflicts because it could lead to depression? Should pro-life groups have their content censored because platforms worry that it could impact the mental well-being of teenage mothers? This bill opens the door to nearly limitless content regulation.

The bill contains a number of vague provisions and undefined terms. The text does not explain what it means for a platform to “prevent and mitigate” harm, nor does it define “addiction-like behaviors.” Additionally, the bill does not explicitly define the term “mental health disorder.” Instead, it references the Fifth Edition of the Diagnostic and Statistical Manual of Mental Health Disorders or “the most current successor edition.” As such, the definition could change without any input from Congress.

We do not impose these types of burdens on any other sector of the economy. For example, the bill seeks to protect minors from alcohol and gambling ads on certain online platforms. However, minors can turn on the TV to watch the Super Bowl or the PGA tour and see the exact same ads without any problem.

This bill is a Trojan Horse. It claims to protect our children, but in reality, it stifles free speech and deprives Americans of the numerous benefits created by the internet. Any genuine effort to protect children online must start at home. And if the government does decide to get involved, it must ensure that First Amendment rights are protected, and platforms have clear guidelines on how to comply with the law. This bill fails to do either.

I intended to vote against S. 1409 and encourage you to do the same.

Honestly, this is one of the most compelling arguments against KOSA that I’ve seen, so kudos to Senator Paul and his staff for writing it. The point about how kids can just turn on TV and see the exact same content is a pretty key argument.

Unfortunately, it’s unlikely to have even the slightest effect. KOSA has 70 cosponsors, all of whom want to get nonsense headlines in their local papers about how they voted to “protect the children” even as the bill will actually do real harm to children.

While the vote on Tuesday will be important, the real fight now moves to the House. It’s unclear if there’s consensus on moving on the bill there, and if so, in what form. The current House bill is different than the Senate one, so the two sides would have to agree on what version moves forward. The real answer should be neither, but it seems like the ship has sailed on the Senate version.

Still, kudos to Wyden and Paul for continuing to fight the good fight against a dangerous bill.