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Our letter: https://techfreedom.org/wp-content/uploads/2023/07/KOSA-July-26-2023-TechFreedom-Letter.pdf

There are three major issues here:

First, new language in Marsha Blackburn's substitute amendment make it insane for any platform to *not* verify user age (and thus identity). #KOSA requires protections when a platform knows OR when knowledge can be "fairly implied" that a user is a minor.

What does that mean?

3/ God only knows. The standard provided for the FTC to determine does not provide any meaningful help. And that standard doesn't apply to state attorneys general, who can basically decide to figure it out however they want.

4/ KOSA *says* it doesn't require age verification, but facing uncertainty about when implied knowledge of users' age will be found, the only reasonable course is to age-verify.

Writing that KOSA does not require age verification at best ignores the practical reality. At worst it is deliberate obfuscation of the fact that KOSA is deliberately designed to force platforms into age verification.

5/ Second: The "duty of care" imposed on platforms is unsalvageable. What is in the best interest of one minor, might be in the worst interest of another: minors are not a monolith and there is no one-size-fits-all solution.

There is no way to *possibly* meet this duty.

Except, perhaps, to limit minors' access to anything but the blandest content safe for even the most sensitive user.

6/ But that's EXACTLY why courts hold that imposing a duty on speakers to protect against harmful reactions of listeners violates the First Amendment.

7/ KOSA's authors thought they were clever when they inserted a provision allowing minors to search for, or request, specific content. But why would a platform let them do so when they could be held liable for harms caused by the minor *seeing* that content?

If they think limiting the duty of care to *unrequested* content fixes it, they are wrong. Courts have held even broadcasters, who face more regulation on account of the intrusive nature of the medium, don't have a duty of care to viewers.

8/ Third, and finally: Allowing state attorneys general to enforce KOSA is a recipe for censorship. State AGs *already* use whatever tools they have to go after speech they dislike. Giving them this vague, powerful weapon to attack online content is grossly irresponsible.

Take just two EXTREMELY predictable examples of how this plays out.

9/ Remember: an AG doesn't have to win, or even file, a lawsuit. They have investigatory powers. All they have to do is make a platform's life hell by investigating to coerce them into purging disfavored speech.

10/ These are just a few of KOSA's many, many problems. But they should convey just how dangerous this bill is, and just how far legislators are willing to throw constitutional rights under the bus so they can say that they "held Big Tech accountable."

11/ There is literally nothing that the "do something" crowd won't...well...*do*.

Violating the First Amendment, actively harming the kids they're claiming to protect, whatever. As long as they get TV spots, headlines, and checks, they'll say they've done their part.

Don't let them get away with it.

@AriCohn

That in which Congress declares that Online Platforms have a higher duty of care to minors than the parents of said minors.

I mean its not like this plan would have made stopping Prenda harder... oh wait it would have.
If I had to confirm who I am in meatspace to a platform (well known for keeping data secure /s) the odds are I wouldn't have drawn as much attention to the extortion racket the lawyers were running b/c they could afford to make my life worse.