The Senate Commerce Committee has advanced the Kids Online Safety Act (KOSA), despite warnings from civil liberties groups and LGBTQ advocates that the bill has been endorsed by The Heritage Foundation, a right-wing think tank, and could be used to censor LGBTQ content.
KOSA, introduced by Sens. Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee), has received widespread bipartisan support and is backed by President Joe Biden. During Biden’s address on Tuesday, he urged the Senate to “pass it, pass it, pass it, pass it, pass it.” It has not been lost on critics of the bill that Blackburn — who has made several anti-gay and anti-trans comments in the past — represents Tennessee, the state that tried to ban drag performances in the presence of children.
KOSA has been sold as a mechanism that would protect kids by placing a duty of care on online platforms to prevent the glorification of behaviors like eating disorders and suicide. But civil liberty groups have warned that platforms will also be incentivized to censor educational content under the bill.
The Heritage Foundation explicitly stated that it hopes to use the bill to censor LGBTQ content after being called out by transgender scholar Florence Ashley on Twitter.
“President Biden and Senate Dems are pushing KOSA, which the Heritage Foundation has boasted they will use to ban LGBTQ content online,” Alejandra Caraballo, a trans activist and clinical instructor at Harvard Law’s Cyberlaw Clinic, said in response. “This is a profoundly bad bill.”
Specifically, KOSA could be politicized by state attorney generals, who the bill grants power to enforce the law. If a state attorney general were to claim that content about trans health care, for example, poses risks to children, they could move to censor such content under the bill, according to the Electronic Frontier Foundation, a nonprofit organization defending civil liberties in the digital world.
Advocates are also concerned that platforms may preemptively block content about race, gender and sexuality in states that have already been restricting discussions on these topics. Libraries and schools around the country have pulled more than 1,600 books off the shelves so far in response to conservative states’ culture war on LGBTQ content, critical race theory, and diversity, equity and inclusion.
After the passage of FOSTA-SESTA in 2018, advocates saw platforms over-moderate and censor content that the platforms feared might be in violation of the law. Advocates anticipate this happening on a larger scale if KOSA is signed into law.
“Online services would face substantial pressure to over-moderate, including from state Attorneys General seeking to make political points about what kind of information is appropriate for young people,” explained a 2022 letter in opposition to KOSA from more than 90 LGBTQ and human rights organizations. “At a time when books with LGBTQ+ themes are being banned from school libraries and people providing healthcare to trans children are being falsely accused of ‘grooming,’ KOSA would cut off another vital avenue of access to information for vulnerable youth.”
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