2023-08-28 12:39:00
Better protecting minors on the web is an objective on which everyone agrees, and it is undoubtedly what is worth the Kids Online Safety Act (KOSA) to garner support from both Republicans and Democrats, in a a divisive and heated American political landscape.
But the way in which the law intends to go about protecting young Internet users also arouses the opposition of many associations, who see it as a danger to freedom of expression.
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During the summer, a commission permanente of the Senate approved the bill unanimously, paving the way for a vote in the upper house of Congress, where the bill has strong support on both sides of the political spectrum, and would therefore have a good chance of passing despite the narrow majority enjoyed by Democrats in the Senate.
KOSA’s big idea is to compel online platforms like Facebook, Twitter and YouTube to take extra measures to protect minors. In particular, it aims to create a duty of care (“duty of care” in the language of Shakespeare) in order to make platforms liable to justice in the event that a minor suffers psychological damage after being confronted with violent, hateful, sexual or other content. The law also gives the possibility to the attorneys general of the various states of the Union to sue the platforms in the event of damage suffered by minors in their state.
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« Our proposed legislation provides the right tools to stop tech giants directing toxic content at children and holding them to account when they put profit ahead of safety said Richard Blumenthal, a Democratic senator from Connecticut and one of the champions of the proposal. ” A nationwide health crisis is affecting adolescents, with record levels of despair and depression. It’s been fed by algorithms that work like black boxes and fuel eating disorders, cyberbullying, suicidal thoughts, and more. “, he justifies.
Of recent studies show a worrying rise in depressive disorders among American adolescents, health authorities seeing it a consequence of social media.
A danger to freedom of expression?
Despite its noble intentions, the law is not unanimous. Several voices are being raised to denounce the danger it poses to freedom of expression online, a danger from which the most vulnerable populations could well be the first to suffer. The notion of ” duty of care backed by the very vague concept of damage suffered by minors, in fact risks leading the platforms to censor with all their might to avoid getting into cascading lawsuits that they risk losing.
« KOSA is a dangerous law that gives the government the power to control speech and content “says Evan Greer, director of Fight for the Future, an American internet rights organization. For example, she claims that the law could be used by the most conservative Republican elected officials to censor content related to homosexuality, racism, the right to abortion or climate change.
« Right-wing politicians might well argue that such content “are dangerous for children” because they make them depressed or anxious. This law violates the First Amendment, is therefore unconstitutional, and opens the door to all forms of censorship that could affect marginalized communities “, she says.
This dimension could well spell the end of KOSA, at least in its current form, despite the bipartisan support it enjoys. The First Amendment to the US Constitution effectively prevents the government from censoring speech.
« KOSA requires platforms to act in the interests of minors, despite the fact that minors are autonomous individuals, who are affected differently by the content they encounter. Thus, to avoid any prosecution, the platforms will be forced to cut off minors’ access to all content, except the most innocuous, those which really have no chance of shocking even the most sensitive individuals.
For this reason, the case law is very clear: a duty of care to protect the public from harm caused by such-and-such speech violates the First Amendment. », develops Berin Szoka, president of TechFreedoma non-partisan think tank on new technologies.
Because of its unconstitutional nature, it is unlikely that the law will be passed.
Request for identity documents and facial recognition
If it were to be so despite everything, it is also likely that the Supreme Court will revoke it. In the past, it has already rejected a law which aimed to protect minors on the Internet, the Child Online Protection Act of 1998, which would have for example obliged websites to verify the age of their users, in particular to fight against minors’ access to pornography.
An idea with which the KOSA also flirts. “ The law is written in such a way that it will be impossible to comply without verifying the age of users, which more often than not will mean asking for ID or performing facial recognition. KOSA will therefore increase online surveillance, for both children and adults. Imagine being forced to have your face scanned every time you want to read the news online: this is the future that KOSA is preparing says Evan Greer.
While cyberattacks are constantly on the rise, the obligation to provide access to official documents on an increasing number of websites would also considerably increase the risk for an individual to have their identity stolen and put up for sale on the Darknet.
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According to Evan Greer, a GDPR-style federal privacy law that would control how companies collect user data and use it to recommend content would solve most evils that KOSA intends to tackle without harming freedom of expression and the safety of Internet users.
Debates around the regulation of online content are expected to intensify in the United States as the presidential campaign heats up and several states work on their own laws to this effect. Utah, in particular, a Republican state, is about to adopt a very restrictive law which would prohibit the access of young people under the age of 18 to social networks without parental consent.
On the other side of the Atlantic, the United Kingdom and the European Union are also putting in place laws aimed at imposing more duties on online platforms, laws which are also generating their share of controversy.
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