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March 6th, 2024: The trick is asking nicely!! – Ryan

The authors of the dangerous Kids Online Safety Act (KOSA) unveiled an amended version last week, but it’s still an unconstitutional censorship bill that continues to empower state officials to target services and online content they do not like. We are asking everyone reading this to oppose this latest version, and to demand that their representatives oppose it—even if you have already done so. 

KOSA remains a dangerous bill that would allow the government to decide what types of information can be shared and read online by everyone. It would still require an enormous number of websites, apps, and online platforms to filter and block legal, and important, speech. It would almost certainly still result in age verification requirements. Some of its provisions have changed over time, and its latest changes are detailed below. But those improvements do not cure KOSA’s core First Amendment problems. Moreover, a close review shows that state attorneys general still have a great deal of power to target online services and speech they do not like, which we think will harm children seeking access to basic health information and a variety of other content that officials deem harmful to minors.  

We’ll dive into the details of KOSA’s latest changes, but first we want to remind everyone of the stakes. KOSA is still a censorship bill and it will still harm a large number of minors who have First Amendment rights to access lawful speech online. It will endanger young people and impede the rights of everyone who uses the platforms, services, and websites affected by the bill. Based on our previous analyses, statements by its authors and various interest groups, as well as the overall politicization of youth education and online activity, we believe the following groups—to name just a few—will be endangered:  

• LGBTQ+ Youth will be at risk of having content, educational material, and their own online identities erased.  
• Young people searching for sexual health and reproductive rights information will find their search results stymied. 
• Teens and children in historically oppressed and marginalized groups will be unable to locate information about their history and shared experiences. 
• Activist youth on either side of the aisle, such as those fighting for changes to climate laws, gun laws, or religious rights, will be siloed, and unable to advocate and connect on platforms.  
• Young people seeking mental health help and information will be blocked from finding it, because even discussions of suicide, depression, anxiety, and eating disorders will be hidden from them. 
• Teens hoping to combat the problem of addiction—either their own, or that of their friends, families, and neighbors, will not have the resources they need to do so.  
• Any young person seeking truthful news or information that could be considered depressing will find it harder to educate themselves and engage in current events and honest discussion. 
• Adults in any of these groups who are unwilling to share their identities will find themselves shunted onto a second-class internet alongside the young people who have been denied access to this information. 

What’s Changed in the Latest (2024) Version of KOSA 

In its impact, the latest version of KOSA is not meaningfully different from those previous versions. The “duty of care” censorship section remains in the bill, though modified as we will explain below. The latest version removes the authority of state attorneys general to sue or prosecute people for not complying with the “duty of care.” But KOSA still permits these state officials to enforce other part of the bill based on their political whims and we expect those officials to use this new law to the same censorious ends as they would have of previous versions. And the legal requirements of KOSA are still only possible for sites to safely follow if they restrict access to content based on age, effectively mandating age verification.   

KOSA is still a censorship bill and it will still harm a large number of minors

Duty of Care is Still a Duty of Censorship 

Previously, KOSA outlined a wide collection of harms to minors that platforms had a duty to prevent and mitigate through “the design and operation” of their product. This includes self-harm, suicide, eating disorders, substance abuse, and bullying, among others. This seemingly anodyne requirement—that apps and websites must take measures to prevent some truly awful things from happening—would have led to overbroad censorship on otherwise legal, important topics for everyone as we’ve explained before.  

The updated duty of care says that a platform shall “exercise reasonable care in the creation and implementation of any design feature” to prevent and mitigate those harms. The difference is subtle, and ultimately, unimportant. There is no case law defining what is “reasonable care” in this context. This language still means increased liability merely for hosting and distributing otherwise legal content that the government—in this case the FTC—claims is harmful.  

Design Feature Liability 

The bigger textual change is that the bill now includes a definition of a “design feature,” which the bill requires platforms to limit for minors. The “design feature” of products that could lead to liability is defined as: 

any feature or component of a covered platform that will encourage or increase the frequency, time spent, or activity of minors on the covered platform, or activity of minors on the covered platform. 

Design features include but are not limited to 

(A) infinite scrolling or auto play; 

(B) rewards for time spent on the platform; 

(C) notifications; 

(D) personalized recommendation systems; 

(E) in-game purchases; or 

(F) appearance altering filters. 

These design features are a mix of basic elements and those that may be used to keep visitors on a site or platform. There are several problems with this provision. First, it’s not clear when offering basic features that many users rely on, such as notifications, by itself creates a harm. But that points to the fundamental problem of this provision. KOSA is essentially trying to use features of a service as a proxy to create liability for speech online that the bill’s authors do not like. But the list of harmful designs shows that the legislators backing KOSA want to regulate online content, not just design.   

For example, if an online service presented an endless scroll of math problems for children to complete, or rewarded children with virtual stickers and other prizes for reading digital children’s books, would lawmakers consider those design features harmful? Of course not. Infinite scroll and autoplay are generally not a concern for legislators. It’s that these lawmakers do not likesome lawful content that is accessible via online service’s features. 

What KOSA tries to do here then is to launder restrictions on content that lawmakers do not like through liability for supposedly harmful “design features.” But the First Amendment still prohibits Congress from indirectly trying to censor lawful speech it disfavors.  

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities.

Allowing the government to ban content designs is a dangerous idea. If the FTC decided that direct messages, or encrypted messages, were leading to harm for minors—under this language they could bring an enforcement action against a platform that allowed users to send such messages. 

Regardless of whether we like infinite scroll or auto-play on platforms, these design features are protected by the First Amendment; just like the design features we do like. If the government tried to limit an online newspaper from using an infinite scroll feature or auto-playing videos, that case would be struck down. KOSA’s latest variant is no different.   

Attorneys General Can Still Use KOSA to Enact Political Agendas 

As we mentioned above, the enforcement available to attorneys general has been narrowed to no longer include the duty of care. But due to the rule of construction and the fact that attorneys general can still enforce other portions of KOSA, this is cold comfort. 

For example, it is true enough that the amendments to KOSA prohibit a state from targeting an online service based on claims that in hosting LGBTQ content that it violated KOSA’s duty of care. Yet that same official could use another provision of KOSA—which allows them to file suits based on failures in a platform’s design—to target the same content. The state attorney general could simply claim that they are not targeting the LGBTQ content, but rather the fact that the content was made available to minors via notifications, recommendations, or other features of a service. 

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities. And KOSA leaves all of the bill’s censorial powers with the FTC, a five-person commission nominated by the president. This still allows a small group of federal officials appointed by the President to decide what content is dangerous for young people. Placing this enforcement power with the FTC is still a First Amendment problem: no government official, state or federal, has the power to dictate by law what people can read online.  

The Long Fight Against KOSA Continues in 2024 

For two years now, EFF has laid out the clear arguments against this bill. KOSA creates liability if an online service fails to perfectly police a variety of content that the bill deems harmful to minors. Services have little room to make any mistakes if some content is later deemed harmful to minors and, as a result, are likely to restrict access to a broad spectrum of lawful speech, including information about health issues like eating disorders, drug addiction, and anxiety.  

The fight against KOSA has amassed an enormous coalition of people of all ages and all walks of life who know that censorship is not the right approach to protecting people online, and that the promise of the internet is one that must apply equally to everyone, regardless of age. Some of the people who have advocated against KOSA from day one have now graduated high school or college. But every time this bill returns, more people learn why we must stop it from becoming law.   

We cannot afford to allow the government to decide what information is available online. Please contact your representatives today to tell them to stop the Kids Online Safety Act from moving forward. 

Republished from the EFF’s Deeplinks blog.

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Midway through last week’s Republican presidential-primary debate, the entrepreneur Vivek Ramaswamy started running through conspiracy theories like a frustrated child mashing buttons on Street Fighter, alleging that the Capitol riot was an “inside job” and that the so-called “Great Replacement” theory “is not some grand right-wing conspiracy theory, but a basic statement of the Democratic Party’s platform.”

Right-wing apologism for January 6 is no longer shocking, not even from Republican presidential candidates. Trumpists often vacillate between denying it happened, justifying and valorizing those who attempted to overthrow the government to keep Donald Trump in power, or insisting that they were somehow tricked into it by undercover agents provocateurs. But the basic facts remain: January 6 was a farcical but genuine attempt to overthrow the constitutional government, which many Trump supporters think is defensible because only conservatives should be allowed to hold power.

It was slightly more bizarre to watch Ramaswamy justify “the Great Replacement,” a white-supremacist conspiracy theory holding that, in the words of the disgraced former Fox News host Tucker Carlson, “the Democratic Party is trying to replace the current electorate, the voters now casting ballots, with new people, more obedient voters from the Third World.” This conviction has motivated slaughter in Buffalo, New York; El Paso, Texas; and as far away as New Zealand. Seeing Ramaswamy invoke it was strange because he, the practicing Hindu son of Indian immigrants, is an obvious example of why it is a dumb idea.

Since Trump’s election, in 2016, the Great Replacement has gone from the far-right fringe to the conservative mainstream. After a white supremacist in Texas targeted Hispanics, killing 23 people in 2019, many conservatives offered condemnations of both the act and the ideology that motivated it. But over the past several years, a concerted campaign by conservative elites in the right-wing media has made the theory more respectable. By 2022, after another white supremacist murdered 10 Black people at a supermarket in Buffalo, some prominent voices on the right were willing to claim that there was some validity to the argument that white people are being “replaced.”

[Adam Serwer: Conservatives are defending a sanitized version of ‘the Great Replacement’]

When Ramaswamy gave voice to it last week, white supremacists celebrated with joyful disbelief. Ramaswamy briefly liked and reposted one of those celebrations, despite telling CNN after the debate that “I don’t care about skin color.” The Great Replacement conspiracy theory does not make sense without reference to race. The theory itself is racist, in that it takes as a given that white Christians are the only true Americans; it opposes not illegal immigration but the presence of immigrants who are simply not white, and implies that the purpose of immigration policy should be to preserve a white majority. But it is also racist in assuming that nonwhite people are “obedient” or even liberal simply as a consequence of not being white. It manages to be both racist and stupid in assuming that political coalitions are permanently stable, and that they are not affected by the salience of particular issues, voters’ own personal experiences, or world events, because non-whites are simply interchangeable.

Arab American voters, both Christian and Muslim, are withdrawing support from Joe Biden over his thus-far unconditional support for Israel’s conduct in its war with Hamas. This shift, along with a drift to the right that had already begun among more conservative segments of the Muslim community over LGBTQ rights—is an obvious example of how religious and ethnic minority groups can realign politically in unanticipated ways. Muslim voters were a largely pro-Bush constituency in 2000, prior to the GOP embrace of anti-Muslim bigotry after 9/11. So  were Hispanic voters in 2000 and 2004, and Trump showed similar strength with such voters in 2020, as well as making gains with Black voters. Many immigrants who fled left-wing or Communist regimes in Asia and Latin America—Vietnamese, Venezuelans, Cubans—lean right, much as the influx of Jewish refugees from the Soviet Union in the 1990s did. Immigrants from West Africa are often highly religious and socially conservative. And even within particular groups, there are tremendous regional, cultural, class, and educational differences—Puerto Rican voters in Chicago will not necessarily have the same priorities and values as Tejano voters living in Laredo. The far right and its admirers are too busy railing against diversity to understand that diversity is precisely why “the Great Replacement” is nonsense.

In short, the Democratic Party cannot control how these constituencies vote, because it cannot control how they interpret the world or which issues become salient. Racial identities, including definitions of whiteness, are not stable or permanent across time, and are entirely dependent on politics.

The Republican Party, and its valorization of racial intolerance, has been the Democratic Party’s most effective ally in holding its multiracial coalition together. But even this is no guarantee of party loyalty. Black voters were once a core constituency of the Republican Party, but they preferred the economic agenda of Franklin D. Roosevelt and the party of Dixie to empty Republican platitudes about racial tolerance and being the party of Lincoln.

The fantasy of a “Great Replacement” as a plan to defeat conservatism is, in short, a really dumb idea on its own terms—unless, of course, you are a white nationalist who simply thinks that nonwhites should not be allowed to live in America. In that sense, the most telling thing about Ramaswamy’s invocation of the Great Replacement is that he clearly believes that it’s the kind of thing the Republican base wants to hear.

The Great Replacement is simply another log on the bonfire of right-wing victimhood, an ideology whose consistent position is that its adherents would have unquestioned political hegemony over American life if not for the powerful, shadowy forces arrayed against them. That is the greatest injustice of all—the existence of Americans who oppose them politically, a cataclysm so traumatic that it requires a library of conspiracies to explain.

George Santos, the former Republican representative from New York, seemed like he stepped out of an episode of the HBO political-comedy show Veep. His reality-TV antics and ostentatious fabrications about his life, and the criminal allegations swirling around him, made him a surreal character in an already surreal Congress.

Today he became only the sixth member of the House to be expelled, following a House Ethics Committee investigation and his indictment on federal charges of fraud and conspiracy for allegedly stealing donors’ identities and using their credit-card numbers to “ring up tens of thousands of dollars in unauthorized charges,” as the Associated Press reported. Of the five previously expelled representatives, three had taken up arms against the United States in the Civil War, and two had been convicted on federal charges.

[Read: We hardly knew George Santos]

Santos has not been convicted of anything yet. The comedic absurdity of his actions—having lied about “his distinguished Wall Street background, Jewish heritage, academic and athletic achievements, animal rescue work, real estate holdings and more,” as the AP put it—do not render him guilty beyond a reasonable doubt of the crimes of which he has been accused. That is for a jury to decide. Expelling Santos post-conviction would have been fully justified; pushing him out beforehand is not.

Had I lived in Santos’s district, I would not have voted for him. But once the electorate renders its decision, only an extraordinary justification should overturn its will. In the five previous expulsions, there was no doubt about what the members had done. In this case, Santos maintains his innocence. Finding him persuasive is not necessary to see that Congress deciding for itself whether voters have made a mistake could lead to more members being expelled for things that they are only alleged to have done, or that fall far short of criminal convictions or armed insurrection. The fact that Santos lied to his voters about his life does not meet this high bar—it is not as though dishonesty is an atypical quality for a politician, even if Santos carried it to an atypical extreme.

[David A. Graham: The non-end of George Santos]

Is it embarrassing that Santos was elected in the first place? Yes. But that’s democracy. Sometimes voters make mistakes. The role of members of Congress is to represent their constituents, not to overturn the will of the voters just because they believe those voters have acted unwisely.

The joys of intertextuality and close reading

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