Published August 8, 2024
Eating disorders, sexual exploitation, substance abuse, rising rates of suicide among tweens and teens—for social media companies, these are just external costs of doing business. While these companies do all they can to maximize profits with no regard for the health, development, and innocence of children, parents have been standing in the gap. Parents have been left alone on the front lines without any support while they face some of the biggest companies in the world, which are actively working to recruit children as lifelong users, designing their products to be maximally addictive to young brains.
Our laws meant to protect children online are badly outdated; the last one passed at the federal level was the Children’s Online Privacy Protection Act in 1998, long before the invention of smartphones and social media. That means parents have been without effective recourse and tech companies have had little legal accountability when it comes to children.
That is the context in which we must interpret last week’s Senate vote to pass the Kids Online Safety Act (KOSA) by a vote of 91-3. The bill is a critical and urgently needed step forward in the overwhelmingly bipartisan effort to protect America’s kids online.
Senator Marsha Blackburn (R-Tenn.), one of the bill’s sponsors, chastised tech executives in a January hearing, saying, “Children are not your priority, they are your product.” Big Tech’s approach to young users is even worse than that. Tech companies not only exploit children, luring them into offering themselves to the digital world for consumption in order to make the companies money, but ensure that children become addicts. Smartphones and social media are not designed to be used responsibly; they are designed to overpower self-control. Mark Zuckerberg admitted in the same Senate hearing that he wants children to spend more, not less, time on Meta‘s products.
KOSA aims to reorder tech companies’ priorities, requiring them to design their products with children’s health and safety in mind. The bill creates a duty of care, which would make online platforms responsible for preventing and mitigating a list of specific harms to minors: promotion of suicide, eating disorders, substance abuse, sexual exploitation, and advertisements for unlawful products for minors like gambling, tobacco, and alcohol. Tech companies would be legally liable and could face litigation from the Federal Trade Commission (FTC) for failing to enact these protections.
To date, Big Tech companies have been allowed to get away with harming children. Consumer protection lawsuits have been thrown out because of judicial precedent that expanded the interpretation of the Communications Decency Act’s Section 230 to immunize internet companies not only for third-party content or their moderation decisions, but even for their own wrongdoing. KOSA helpfully imposes specific and limited product liabilities that will make it impossible for tech companies to use Section 230 to evade responsibility for the harms they cause.
KOSA gives state attorneys general stronger grounds to bring lawsuits against Big Tech companies, like the one being brought against Meta by over 40 state attorneys general that alleges the company violated state consumer protection laws by making its products addictive and then lying about the harm to children’s mental health.
It also gives more tools to parents and their children to control their online experiences. It requires social media platforms to provide minors with options to protect their information, disable addictive product features, and opt out of personalized algorithmic recommendations. And it requires platforms to enable the strongest privacy settings for kids by default, and to give parents privacy controls and the ability to see the amount of time their child is spending on the platform. All of these provisions aim to make kids’ experience on social media less addictive, more private, and more transparent to parents.
The fight, however, is far from over. The bill must pass the House, and Big Tech lobbyists are doing everything they can to stop it. Big Tech is arguing the bill violates free speech protections. It is telling progressives that KOSA will open the door to censoring LGBTQ content and transgender care, and telling conservatives it will be used to censor pro-life efforts. These are all red herrings.
The bill is completely content neutral. It does not implicate speech at all. KOSA does not give the FTC or states the power to bring lawsuits over content or speech. In fact, the bill explicitly states that kids must be allowed to view and search for the content that they choose to see. KOSA explicitly does not amend Section 230. Rather, it clarifies the statute, making explicit that it protects companies from liability for the content they host and moderate, but not for the product they have designed.
Also, the bill is narrowly targeted to social media platforms. Nonprofit websites are explicitly exempt. Websites created by, for example, a pro-life group or a pro-LGBTQ group to spread their information and message would be completely unaffected.
Other conservative groups have argued the bill undermines parental authority and transfers it to government bureaucrats. It does no such thing. The bill provides an extra tool in parents’ toolbox. It empowers parents.
It’s rare for us to see bipartisan efforts to protect children. Big Tech companies are scared and they’re doing everything they can to fight back and stop it. We can’t let them win. The House must do the right thing and bring KOSA to a vote immediately. They have a critical opportunity to further strengthen this bill and bring it into effect sooner. Parents need them to rise to the occasion.
Clare Morell is a fellow at the Ethics and Public Policy Center, where she directs EPPC’s Technology and Human Flourishing Project. Prior to joining EPPC, Ms. Morell worked in both the White House Counsel’s Office and the Department of Justice, as well as in the private and non-profit sectors.
