In the fall of 2021, the Wall Street Journal reported on internal Facebook research leaked by whistleblower Frances Haugen detailing that the company knew Instagram was harmful to teenagers, but did little about it. Around that same time, Instagram acknowledged that it had recommended accounts promoting extreme dieting to accounts registered to teens, even though that goes against its policies.
Now, a controversial bill called the Kids Online Safety Act (KOSA) is aiming to create restrictions for online platforms that will—in theory—protect kids from potentially harmful content.
The bill would require companies like Instagram, TikTok, and Snap to “take reasonable measures…to prevent and mitigate” potential harms to users under the age of 17 (defined as minors in the bill), pointing specifically to anxiety, depression, eating disorders, bullying, and sexual exploitation. Specifically, companies would be required to design their platforms in ways that would not promote this kind of content to minors in the first place. However, the bill would not cover content that a minor “deliberately and independently” searches.
KOSA—which would be enforced by the Federal Trade Commission and state attorneys general—would also require that platforms give kids the ability to opt out of “personalized recommendation systems,” aka algorithms, as well as include labels alongside ads shown to minors that explicitly explain why they were served that ad.
Opponents have raised concerns about the bill, ranging from it potentially silencing LGBTQ+ content to censorship and impinging on freedom of speech. But, with President Biden’s support, Congress could vote on the bill this fall.
Are the kids alright?
KOSA was first introduced in early 2022 by Senators Marsha Blackburn and Richard Blumenthal. The bill was reintroduced this year with changes aimed at addressing some of the criticism, though some critics say it hasn’t gone far enough.
While KOSA should prevent kids from seeing content that could be harmful, it shouldn’t prevent them from seeing “resources for the prevention or mitigation” of these issues, the revised version states. Still, some opponents have said this section of the bill, which falls under its “duty of care” provision, is too vague and broad, with too much room for interpretation.
“An attorney general can simply argue, ‘I believe that LGBTQ content makes kids depressed, or makes kids anxious,’” Evan Greer, director at digital rights advocacy nonprofit Fight for the Future, told Marketing Brew. Later, she added, “what we do not support is a bill that violates the First Amendment and gives the government the power to dictate what speech young people can see on the internet.”
That’s despite efforts between legislators and advocacy groups to change parts of the bill, work that Josh Golin, executive director of Fairplay, an advocacy group that provided feedback on and supports the bill, said has “narrowed [duty of care] in a way to make it much harder to weaponize.” Some LGBTQ+ orgs, like GLAAD and the Human Rights Campaign, dropped their opposition to the bill after those changes were made, though several still oppose it, according to Vice.
Another concern is how exactly companies would determine who is a minor and who isn’t. For example, users must share their birthdays to sign up for online platforms like Instagram, Snap, and YouTube. But would they seek further personal information under KOSA to determine the age of a 16-year-old who’s just trying to share some memes?
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While supporters of the bill say tech companies likely already have enough data to reasonably determine a user’s age, opponents are concerned that tech companies could instead ask for more personal data to verify age. Legislators included a line in the bill that specifically says companies won’t be required to age gate. Still, Greer said, “What we know from experts is that there is no magical way to conduct age verification that’s not privacy-invasive.”
In addition to receiving bipartisan support on the Hill, the bill’s supporters are varied. They range from the previously mentioned president to Lizzo. Opposition includes digital rights group the Electronic Frontier Foundation—which called KOSA a “censorship bill”—as well as the ACLU and influential tech blogger Mike Masnick, who’s written several posts in opposition to the bill and has said that the legislation could see platforms “taking down any conversation about anything controversial, or that might later be tied to some sort of random harm.”
The IAB, a trade body that represents the digital advertising industry, opposes the bill as well. “While IAB supports protecting children online, KOSA as currently drafted would have a devastating impact on digital advertising and the ad-supported content that children enjoy,” Lartease Tiffith, EVP for Public Policy at the IAB, told us over email. “Although its sponsors have made important changes to the bill since last Congress, there is still concern the current version could lead to arbitrary content restrictions and age-gating that would make the internet less useful for everyone.”
The 4As and the ANAs, other trade groups representing the ad industry, did not respond to requests for comment.
Brand safe, but at what cost?
Unlike other proposed legislation that would outright ban targeted advertising to children, KOSA instead would require platforms to make clear that any ad shown to a minor is indeed, just an ad, and explain why they were shown it.
In fact, some of the changes proposed in KOSA could be welcomed by advertisers, Anthony Prestia, former senior privacy counsel for Snap and head of privacy at compliance company TerraTrue, told Marketing Brew. What the bill seeks to restrict, content that “can impact mental health,” Prestia said, likely isn’t something marketers “want to buy ads against, anyway.”
“There could be some positive to this in the sense that platforms may get more strict about limiting some of this content that’s not necessarily brand friendly,” he said.
So far, tech nonprofit think tank TechFreedom and the Center for Democracy and Technology, an internet privacy nonprofit (Golin noted to Ars Technica that “substantial financial contributions from Google and Meta” may color its views), have come out against KOSA. While Google did not provide comment by publication time, Meta declined to comment on KOSA, instead providing a general statement.
“We want young people to have safe, positive experiences online…We refer to research, feedback from parents, teens, experts, and academics to inform our approach, and we’ll continue evaluating proposed legislation and working with policymakers on these important issues,” Meta spokesperson Faith Eischen said via email.