PLEASE take action against a suite of repressive legislation intended to police the internet, ban encryption, allow the banning of online platforms, and impose firewalls and dragnet surveillance on American internet users.
When a politician comes to you with legislation claiming to “protect children” it’s wise to be cautious and read the legislation.
Republicans have perfected such appeals in hundreds of bills claiming to “protect” children from history, social studies, vaccinations, and sex education — just as an earlier generation “protected” children by imposing segregation and fighting busing and fluoride. If Republicans really cared about children, they’d pass comprehensive gun control legislation, support universal childcare, and put safety belts in school buses. But they don’t.
So it’s disheartening when Democrats join Republicans in trying to destroy online privacy by policing the internet.
Connecticut Democrat Senator Richard Blumenthal has had the internet in his sights since at last 2007 when he called it “a playground for predators.” Last year Blumenthal filed his Kids Online Safety Act (KOSA) legislation and it immediately triggered some well-deserved outrage from almost 100 civil rights organizations. You can read their objections here to a bill that would have made online platforms impose Chinese-style “Great Firewall” controls on what children can access online and would have mandated a “duty of care” to implement various types of surveillance and data collection to “protect” children from “bad actors.”
Still smarting from the criticism, Blumenthal went back to the drawing board and this year, together with far right Tennessee Senator Marcia Blackburn and equal numbers of center-right Democrats and right-wing Republicans, filed S.1409, An Act to Protect the Safety of Children on the Internet (KOSA 2023). Unfortunately, this one is just as awful as the last.
KOSA’s Republican co-sponsors include: Marsha Blackburn; Katie Britt; Shelley Capito; Bill Cassidy; John Cornyn; Mike Crapo; Steve Daines; Joni Ernst; Lindsey Graham; Chuck Grassley; Cindy Hyde-Smith; James Lankford; Cynthia Lummis; Roger Marshall; Markwayne Mullin; Lisa Murkowski; James Risch; Marco Rubio; Rick Scott; Dan Sullivan; Roger Wicker; and Todd Young.
It’s doubtful that the members of this right-wing crew are as interested in protecting children as they are in policing the internet.
Their Democrat fellow-travelers include: Tammy Baldwin; Richard Blumenthal; Ben Cardin; Thomas Carper; Bob Casey; Chris Coons; Dick Durbin; Maggie Hassan; John Hickenlooper; Tim Kaine; Mark Kelly; Amy Klobuchar; Ben Lujan; Joe Manchin; Robert Menendez; Chris Murphy; Gary Peters; Brian Schatz; Jeanne Shaheen; Mark Warner; Peter Welch; and Sheldon Whitehouse.
KOSA comes at a time when states like Idaho have banned TikTok and others are imposing laws to limit teen access to the internet. Of course, the most glaring problems with the internet — hoaxes, disinformation, and threats from the far right — are not easily addressed because censorship violates the First Amendment.
But if you “protect” the children through surveillance and censorship, then all the same surveillance and censorship infrastructure can be used on grownups. In order to impose selective censorship on just children, you’ll need some method of age verification. And here’s where the trip down the slippery slope begins. Everyone — not just children — will have to verify their age by providing personal information typically not required for online services. Adults won’t really be able to opt-out either; otherwise every 11 year-old would simply claim s/he’s an adult.
According to the ACLU, EFF, and 90 other civil rights organizations, “age verification may require users to provide platforms with personally identifiable information such as date of birth and government-issued identification documents, which can threaten users’ privacy, including through the risk of data breaches, and chill their willingness to access sensitive information online because they cannot do so anonymously. […] Rather than age-gating privacy settings and safety tools to apply only to minors, Congress should focus on ensuring that all users, regardless of age, benefit from strong privacy protections by passing comprehensive privacy legislation.”
Neither Republicans nor Democrats have done much to guarantee citizens online privacy to the degree that the EU has, but center-right Democrats and far-right Republicans sure love to invent ways to “protect children” which inevitably destroy privacy and curtail civil liberties.
Melissa Gira Grant writes in the New Republic that “KOSA […] has been billed as a new way to protect kids from a more pervasive and more dangerous internet. But in reality, KOSA hands powerful tools to the far right to further wage its war on kids, whether it’s censoring education on racism or demonizing queer and trans youth. Meanwhile, Democrats who support KOSA appear to either not have noticed or not minded.”
KOSA requires online platforms to “take reasonable measures” to “prevent and mitigate” harms to minors such as “anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors,” and monitor “patterns of use that indicate or encourage addiction-like behaviors” and “physical violence, online bullying, and harassment of the minor.” State attorneys general are tasked to “prevent and mitigate” and to prosecute platforms for failures to protect children. Describing harms ambiguously much like anti-CRT legislation, state AGs can prosecute platforms if children are “threatened or adversely affected by the engagement of any person in a practice that violates this Act.”
Still from “Das Leben der Anderen” – Stasi surveillance in East Germany
Even if well-intentioned, which it is not, the burden of surveillance that this legislation imposes on internet platforms and the vast sweep of monitoring hundreds of millions of users is something right out of East Germany’s Ministerium für Staatssicherheit (the Stasi).
As Floridians are well aware, their governor and legislature regard teaching Advanced Placement Black History as harmful, so that could end up being censored. KOSA is a gift to the far-right, to white supremacists, and to homophobes since it will effectively legitimize anti-CRT, anti-LGBTQ+ and racist provisions like Florida’s nationally.
Consequently, 90 civil liberties groups wrote to Senate Majority Leader Chuck Schumer warning that “online services would face substantial pressure to over-moderate, including from state Attorneys General seeking to make political points about what kind of information is appropriate for young people. […] At a time when books with LGBTQ+ themes arebeing banned from school libraries and people providing healthcare to trans children are being falsely accused of ‘grooming,’ KOSA would cut off another vital avenue of access to information for vulnerable youth.”
In addition to the mandated censorship and surveillance, internet platforms would be required to file annual public reports itemizing risks to children and listing their prevention and mitigation efforts:
- an assessment of the extent to which the platform is likely to be accessed by minors
- a description of the commercial interests of the covered platform in use by minors
- an accounting of the number of individuals using the covered platform reasonably believed to be minors
- an assessment of the reasonably foreseeable risk of harms to minors posed by the covered platform
- an assessment of how recommendation systems and targeted advertising systems can contribute to harms to minors
- a description of whether and how the covered platform uses system design features that increase, sustain, or extend use of a product or service by a minor
- a description of whether, how, and for what purpose the platform collects or processes categories of personal data that may cause reasonably foreseeable risk of harms to minors
- an evaluation of the efficacy of safeguards for minors
- an evaluation of any other relevant matters of public concern over risk of harms to minors
The specificity of these burdensome reporting and data collection requirements is remarkable, given these same legislators’ lack of interest in accountability for police officers, Pentagon contractors, or oil and gas companies.
Enigma machine: it’s encryption was eventually broken
KOSA, and worse
KOSA is only one of several malignant pieces of legislation intended to police the internet. Several others do so at the cost of effectively banning encryption.
- The STOP CSAM ACT from Illinois Democratic Senator Dick Durbin requires online platforms to snoop on their users to detect child pornography. While this makes it easier to prosecute Dark Web operators, the legislation also depends on disabling data encryption to permit snooping by law enforcement and the user’s own platform. Effectively banning encryption is such a radical step that it explains why STOP CSAM was quietly sneaked into the [annual] National Defense Authorization Act, which is often passed without much scrutiny by both political parties. In addition to breaking encryption, and like KOSA, STOP CSAM would also mandate a take-down mechanism that can be used by far-right politicians to remove any kind of content considered harmful to children, including resources for LGBTQ+ teens or African-American curriculum.
- The EARN IT ACT from South Carolina Republican Senator Lindsay Graham is ostensibly to “protect” children from child pornography. But once again, it does more to advance dragnet surveillance than its stated purpose. This bill permits the scanning of your online family photos, messages, and emails. And of course in order to do that your provider has to disable your encryption.
- The Cooper-Davis Act, an amendment to the Controlled Substances Act from Kansas Republican Senator Roger Marshall, is intended to monitor the online use and sale of controlled substances, particularly fentanyl. This legislation requires your internet provider to monitor your communications and proactively report suspected drug use or drug sales to law enforcement. No warrants are necessary! Aside from violating the Fourth Amendment, the bill also relies on disabling encryption to enable the snooping.
- The RESTRICT ACT, sponsored by Democratic Senator Mark Warner, claims to target data collection by foreign governments. It was specifically intended to ban TikTok but it also penalizes users for employing Virtual Private Networks (VPN) or side-loading (unconventional installation) of apps to circumvent censorship.
Take action against all of them!
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