Gary Carnivele

The CEOs of Facebook, Instagram, TikTok, X, Snap, and Discord testified in the Senate on Wednesday to discuss the online exploitation of children. The discussion brought up the Kids Online Safety Act (KOSA), a bipartisan bill that seeks to protect minors from online harm. But KOSA has come under fire from some LGBTQ+ activists and groups who fear that the bill will enable Republicans to block queer youth from seeing age-appropriate LGBTQ+ content online. 

Laura Marquez-Garrett, an attorney with the Social Media Victims Law Center, says revisions to the bill have helped ensure that its current version will protect all kids and safeguard against potential misuse by anti-LGBTQ+ politicians. But Evan Greer, director of Fight for the Future, a nonprofit that protects people’s human rights in the digital age, says KOSA unconstitutionally violates free speech rights and will result in social media companies broadly censoring LGBTQ+ content rather than risking lawsuits from attorneys general.

It’s undeniable that social media can negatively impact mental health. Last year, the U.S. Surgeon General issued an advisory noting how the frequency and kinds of information shown to young people on social media can cause a “profound risk of harm” to their mental health. 

“Children and adolescents on social media are commonly exposed to extreme, inappropriate, and harmful content, and those who spend more than three hours a day on social media face double the risk of poor mental health including experiencing symptoms of depression and anxiety,” the Surgeon General’s report on Social Media and Youth Mental Health said. Social media’s content and design can also make some young people feel addicted to it, increasing body dysmorphia, low self-esteem, and even self-harming behaviors, the report added. 

KOSA tries to remedy this by requiring online platforms to take measures to prevent recommending content that promotes mental health disorders (like eating disorders, drug use, self-harm, sexual abuse, and bullying) unless minors specifically search for such content. KOSA also requires platforms to limit features that result in compulsive usage — like autoplay and infinite scroll — or allow adults to contact or track young users’ location. The bill says platforms must provide parents with easy-to-use tools to safeguard their child’s social media settings and notify parents if their kids are exposed to potentially hazardous materials or interactions.

Furthermore, KOSA requires platforms to submit annual reports to the federal government containing details about their non-adult users, the internal steps they’ve taken to protect minors from online harms, the “concern reports” – or reports platforms issue parents when their child encounters any harmful content – they’ve issued to parents, and descriptions of interventions they’ve taken to mitigate harms to minors. These reports will be overseen by an independent third-party auditor who consults with parents, researchers, and youth experts on additional methods and best practices for safeguarding minors’ well-being online.

KOSA has bipartisan support, including that of President Joe Biden as well as 46 senatorial co-sponsors, 21 of whom are Democrats, including lesbian Sen. Tammy Baldwin (WI) and LGBTQ+ allies like Sen. Amy Klobuchar (MN) and Sen. Elizabeth Warren (MA). LGBTQ Nation reached out to Baldwin and Warren’s offices for additional comment but didn’t receive a response by the time of publication. KOSA is also supported by groups like Common Sense Media, Fairplay, Design It For Us, Accountable Tech, Eating Disorders Coalition, American Psychological Association, and the American Academy of Pediatrics.

But while parents of transgender youth and numerous pro-LGBTQ+ organizations agree that social media can negatively impact young people’s mental health, many other groups have nonetheless opposed the bill, including the American Civil Liberties Union (ACLU), the Woodhull Freedom Foundation, the LGBT Technology Partnership, as well as LGBTQ+ advocacy organizations in six states. 

“KOSA is, at its heart, a censorship bill,” Mandy Salley, Chief Operating Officer of the Woodhull Freedom Foundation, a group that advocates for sexual freedom as a fundamental human right, told LGBTQ Nation. “If passed in its current form, we believe that KOSA will hinder the ability of everyone to access information online and negatively harm many communities that are already censored online, including sex therapists, sex workers, sex educators, and the broader LGBTQ+ community. Our human right to free expression cannot be ignored in favor of supposed ‘safety’ on the Internet.”

The big sticking point: KOSA’s Duty of Care provision

Specifically, Woodhull and the other aforementioned organizations are worried about the bill’s Duty of Care provision that allows attorneys general to conduct investigations, issue subpoenas, require documentation from, and file civil lawsuits against any platforms that have “threatened or adversely affected” minors’ well-being. LGBTQ+ advocates fear that Republican attorneys general who consider LGBTQ+ identities as harmful forms of mental illness will use KOSA to censor such web content and prosecute platforms that provide access to such content.

In a July 2023 Teen Vogue op-ed, digital rights organizer Sarah Philips wrote that the bill “authorizes state attorneys general to be the ultimate arbiters of what is good or bad for kids. If a state attorney general asserts that information about gender-affirming care or abortion care could cause a child depression or anxiety, they could sue an app or website for not removing that content.”

It didn’t help that KOSA was introduced by anti-LGBTQ+ Sen. Marsha Blackburn (R-TN), who has said that one of the bill’s top priorities is to protect children from “the transgender in this culture.”

“[Social media] is where children are being indoctrinated,” Blackburn told the Family Policy Alliance, a conservative Christian organization, in a September 2023 speech. “They’re hearing things at school and then they’re getting onto YouTube to watch a video and all of a sudden this comes to them… They click on something and, the next thing you know, they’re being inundated with it.”

Blackburn’s office told LGBTQ Nation that her comment had been “taken out of context” and wasn’t related to KOSA, stating, “KOSA will not — nor was it designed to — target or censor any individual or community.” But the anti-LGBTQ+ conservative think tank Heritage Foundation has also said it wishes to use the law to “guard” kids against the “harms of… transgender content.” 

But Marquez-Garrett told LGBTQ Nation that these concerns are based on an old version of the bill that has since been revised after consultation with concerned LGBTQ+ activists.

“If [the possibility of an attorney general misusing a law is] the standard by which we judge all laws, we’re never going to have new laws because the reality is an unscrupulous attorney general can try,” she said. “But it doesn’t mean they’re going to succeed.”

First, she points out that Philips’s concern about attorney generals suing platforms for not removing pro-LGBTQ+ content doesn’t necessarily apply for two reasons: KOSA doesn’t regulate what LGBTQ+ or allegedly harmful content a site can host — it regulates what content that websites automatically suggest to young users. Users of all ages can still access any material that they deliberately search for. 

Moreover, attorneys general have to prove to a judge and the Federal Trade Commission (FTC) that, by KOSA’s definitions, LGBTQ+ content harms young users’ mental health. Such arguments won’t pass muster with every judge or FTC commissioner.

Marquez-Garret noted that after Sen. Blackburn made her concerning comments, the bill was revised with input from queer advocates and reintroduced with amendments meant to account for those concerns. For example, while the original bill broadly required web platforms to prevent all “harms” to minors, the revised bill specifically mentions the harms companies must work against (including suicidal behaviors, eating disorders, substance use, sexual exploitation, and ads for tobacco and alcohol). 

She also notes that KOSA says an attorney general who begins civil actions under KOSA will be required to issue a report of any action to the FTC. The FTC will then have the right to intervene. 

“The FTC is only as good as the people running it,” Marquez-Garrett told LGBTQ Nation. “And we don’t know what’s going to happen in the future.” But, assuming that the FTC is “not nefarious and is reasonable,” she continued, if the FTC begins an investigation into the actions, the attorney general’s home state is forbidden from taking any additional actions.

Marquez-Garrett also points out that the revised version of KOSA contains a carveout that says that if a minor searches for any sort of content, including LGBTQ+ content, then they’re allowed to see it even if an attorney general considers it harmful. Additionally, KOSA also explicitly excludes many websites from its control, including government platforms, libraries, and non-profits. That means if a minor finds pro-LGBTQ+ content on the websites of the ACLU, The Trevor Project, or the Human Rights Campaign, an attorney general can’t prosecute.

Furthermore, under the revised KOSA, websites aren’t required to install age verification or parental consent functionality that might prevent young people from accessing different platforms. Though Greer questioned how social media platforms can comply with the bill without conducting age verification, Marquez-Garrett says Greer’s question ignores KOSA’s plain language and echoes “another Big Tech narrative about Big Tech’s ability or inability to comply with KOSA.”

Regardless, under KOSA, platforms are also expressly forbidden from being required to disclose a minor’s browsing behavior, search history, messages, contact list, or other content or metadata of their communications that could potentially out them to their parents.

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Worries about censorship and unconstitutionality

“We totally agree that big tech platforms and the surveillance capitalist business model that they employ are doing real harm, and that they’re specifically harming LGBTQ people and communities,” Greer, director of Fight for the Future (FFF), told LGBTQ Nation. “But as long as KOSA attempts to dictate what content platforms can recommend, it will be unconstitutional.”

FFF and the ACLU have said that the government cannot force platforms to suppress entire categories of content or to suppress all content that might lead to a minor becoming depressed or anxious without violating the First Amendment.

“If you have an unconstitutional law, then the Big Tech lobbyists will come for you in court and they will win,” she added. Greer pointed to recent court challenges to social media regulations passed by states — including Utah’s age verification and parental consent law, a similar law passed by Ohio, and California’s Age-Appropriate Design Code Act (which has been challenged in a court by companies such as Google, Meta, Amazon, X, and TikTok).

Greer said that legislators behind KOSA should have consulted more with civil liberties and human rights advocates, like her organization and the ACLU, to consider a bill’s potential constitutional and human rights pitfalls. 

Marquez-Garrett disagrees with Greer’s characterization, telling LGBTQ Nation, “KOSA does not prohibit content of any sort, nor does it prohibit posting of any content by third parties, so does not run afoul of the First Amendment.”

Apart from the constitutionality issue, Greer most worries that if social companies are subjected to liability for content, they will over-remove content to avoid getting sued. “This is exactly what happened with SESTA,” she said, referencing two bipartisan laws passed in 2018 that sought to reduce sex trafficking online. 

Because the law held online companies liable for any user content that could be seen as facilitating sex work, many online businesses just opted to shut down any forums for sex or dating. Others banned any potential “adult content” (including discussion boards), deleted content about avoiding sexually transmitted infections, and created rules forbidding sexual comments. The law made sex workers much more vulnerable to traffickers and made actual sex trafficking much more difficult to track, its critics say. Even Sen. Warren, who supported the law, expressed regret for its unintended consequences.

“Do I think that Mark Zuckerberg is going to go to bat in court to protect my kid’s ability to continue engaging in the online communities that she finds supportive and loving and caring? Absolutely not,” Greer said. “He’s gonna roll over and do whatever he thinks he needs to do to avoid his company getting sued,” she added, especially if they’re threatened by “rogue” attorneys general, conservative judges, or an FTC run by the administration of Donald Trump.

“Do people really want to gamble with trans kids’ lives hoping that we’ll never have a bigot in the White House ever again? I sure don’t,” Greer added.

Anti-LGBTQ+ attorneys’s claims could be aided by the numerous studies linking LGBTQ+ identities to higher rates of mental distress in young people. Even though these rates are largely attributable to anti-LGBTQ+ stigma and legislation, numerous state attorneys general have nonetheless already targeted LGBTQ+ content in schools and information about gender-affirming care as forms of child abuse that seek to harm and “sexualize” kids.

In an informational white paper, FFF said that if a user searches for “Why do I feel different from other boys,” and a platform returns search results about gender identity, an attorney general can argue that that’s not what the user was searching for, and thus the platform is liable for “algorithmically recommending” that content. 

Is there a way to fix KOSA’s potential problems?

If KOSA becomes law, social media companies won’t risk attracting these attorneys’ attention, Greer and other groups worry. Instead, the companies will react by omitting, algorithmically suppressing, or blocking large swaths of LGBTQ+ content — not just “recommended” served by platform algorithms.

This would affect not only content related to LGBTQ+ issues and other controversial but important topics for users they believe could be minors (including content from The Trevor Project or the Human Rights Campaign, Greer says), but also any users’ or resources’ posts sharing information about queer health resources, life experiences, and social events, Greer predicted, since all social media content is regulated by algorithms. 

“I truly believe that legislation [like KOSA] that enables this type of government censorship makes kids less safe, and not more safe,” Greer says. “It feels to me like it’s driven by the same bad thinking behind abstinence-only sex education: the idea that we protect kids by cutting them off from information rather than by allowing them to access it.”

Marquez-Garrett disagrees. “KOSA is plain on its face, and efforts to misinterpret KOSA will not succeed. If a conservative attorney general could simply attack a type of content it doesn’t like, then liberal attorneys general could do the same, such as with guns, or political content, or any number of potentially objectionable topics.  And KOSA’s own limitations would provide complying platforms with viable defenses.”

But instead of supporting KOSA in its current form, FFF has encouraged legislators to ditch its Duty of Care provision and replace it with a strict privacy regime that bans any use of minors’ personal data to power algorithmic recommendation systems. The FFF also suggested explicitly prohibiting specific manipulative business practices, like autoplay, infinite scroll, intrusive notifications, and surveillance advertising.

Lawmakers should also drop the provision in KOSA allowing enforcement by attorneys general, the FFF suggests. Instead, its provisions could be enforced by the FTC as “unfair or deceptive business practices,” which the FTC already has a mandate to crack down on. This would aid the law’s constitutionality and bring the law into the realm of regulating these businesses the same way that the federal government already regulates many other businesses.

FFF also said some of these aims could be achieved through other proposed legislation like an update of the Children’s Online Privacy Protection Act (COPPA 2.0) and the American Data Privacy and Protection Act (ADPPA).

Some social media platforms and influencers are opposed to any government oversight, Marquez-Garrett says, because policies that limit what their algorithms can recommend also reduce their overall content engagement and, thus, their profits. 

Currently, social media platforms aren’t protecting LGBTQ+ kids, she adds. A minor who searches for “gay pride” may be served videos telling them that being gay is bad and that gay people are going to hell and should kill themselves. Platforms also regularly remove LGBTQ+ content for allegedly violating platform policies or potentially offending users in other countries. 

She believes that KOSA could help open the playing field for platforms that don’t harmfully target kids because any such actions will become a matter of public record and scrutiny. This will allow ethical web designers to create better systems that protect children’s needs. That’s especially important, she said, since numerous studies have shown that access to positive online LGBTQ+ media and communities can improve young queers’ mental health.

Ultimately, she believes that everyone should support protecting children, especially as more studies show how negative online experiences can increase mental distress and suicidality among kids.

“We cannot give big tech a free pass and assume they have our kids’ best interests at heart,” she said.