U.S. Senate Might Vote on KOSA, Despite New CRS Report on AV Laws

WASHINGTON—The extremely controversial Kids Online Safety Act (KOSA) could be voted on in the U.S. Senate by the end of the month, reports the Associated Press. This news comes weeks after the nonpartisan Congressional Research Service (CRS), the legislative branch's research think tank, warned that any sort of child safety legislation requiring the collection of sensitive, personally identifiable information could run up against the U.S. Constitution. KOSA, a bipartisan bill initially introduced by Sens. Richard Blumenthal, D-Conn., and Marsha Blackburn, R-Tenn., is regarded by civil liberties organizations as a measure that could harm anonymity online and lead to censorship. AVN has reported extensively on KOSA, including the introduction of a companion bill in the U.S. House of Representatives by a bipartisan coalition of lawmakers. Despite the bipartisanship, there are still noteworthy fears. Nevertheless, this hasn't swayed against a potential vote on the measure by the end of July. At least, that is what Josh Golin, executive director of Fairplay, explained to Associated Press technology writer Barbara Ortutay. Fairplay is a Boston-based nonprofit group campaigning against marketing tactics used by large technology companies to reportedly addict minors to social media. It is one of the leading groups in support of the KOSA legislation. Golin said that he is "very hopeful" for a vote by the end of the month. He said, “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 referred to the fact that KOSA has been delayed many times with no major vote taken, despite support from Senate Majority Leader Chuck Schumer, D-N.Y., and the Biden administration. He remains optimistic that Schumer will bring KOSA to a vote, citing the fact that they still have the requisite support from over half of the U.S. Senate. However, others aren't sold on the bill. The ultraconservative Sen. Rand Paul, R-Ky., who has on occasion shown a civil libertarian-leaning streak on blocking measures that censor free expression, is opposed to the bill, as is Sen. Ron Wyden, D-Ore., who was the co-author of the controversial Section 230 of the Communications Decency Act of 1996 that has been reaffirmed by the U.S. Supreme Court numerous times for being crucial in protecting the First Amendment on the internet. As AVN has previously reported, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation are two of the leading civil liberties groups that oppose KOSA due to its potential for censoring legal expression. This is a crucial detail to this report because Congress has also made another development regarding age verification legislation or bills, such as KOSA, that create an environment that risks the sensitive personally identifiable information of adults and minors. While KOSA doesn't explicitly require age verification on a national scale, it would require platforms to adhere to a duty of care to design platforms that are protective of users who are identified as minors. (Federal courts have already declared one iteration of this, the California Age-Appropriate Design Code Act, unconstitutional.) CRS published a report in June titled "Identifying Minors Online." Authored and compiled by Clare Y. Cho, PhD., an economist trained at Ohio State University and an analyst in industrial organizations for the Congressional Research Service, the report found that any legislation allowing the identification of minors on the internet in the name of age assurance or similar measures could violate the U.S. Constitution and the First Amendment. "Courts have ruled that some of these state laws likely violate the First Amendment," Cho wrote, referring to state-level age verification laws targeting social media networks and adult entertainment platforms. "In addition, some federal laws seeking to protect minors online have been deemed unconstitutional under the First Amendment by federal courts." "[The] Kids Online Safety Act ... would require certain federal agencies to 'conduct a study evaluating the most technologically feasible methods and options for developing systems to verify age at the device or operating system level,'" observed Cho. "Research on age verification methods might occur under broader proposals related to conducting research on online platforms." While Cho doesn't explicitly warn against age verification legislation, it is worth noting that the ongoing debate surrounding the constitutionality of these types of proposals is not easing up. For example, the U.S. Supreme Court took up the case Free Speech Coalition et al. v. Paxton for review next term. In that case, adult industry trade organization the Free Speech Coalition (FSC) and the parent companies of the largest adult entertainment platforms in the world allege that Texas House Bill 1181, an age verification proposal adopted by the state legislature targeting adult websites, violates porn site users' First Amendment rights. The ACLU is co-counsel for FSC and the porn companies in this case.