Online Safety Bill Violates First Amendment, Critics Tell Congress

A proposed federal law that would require web companies to act in the “best interests” of users under 17 is drawing opposition from free speech advocates, law professors and dozens of civil rights groups.

The Kids Online Safety Act “would violate the First Amendment rights of both minors and adults to access content and communicate anonymously or pseudonymously,” a coalition of law professors and the libertarian organization TechFreedom say in a letter sent to lawmakers on Tuesday.

The bill “will also be weaponized against content aimed purely at adults,” and its provisions “will authorize political opportunism in the states, with protected speech as a casualty,” the letter continues.

The Kids Online Safety Act (S. 3663) would require web companies to take to design their services with young users' “best interests” in mind -- including by taking steps to prevent or mitigate eating disorders, self-harm and substance abuse.

The bill -- introduced earlier this year by Senators Richard Blumenthal (D-Connecticut) and Marsha Blackburn (R-Tennessee) -- advanced out of the Senate Commerce Committee in July.

Proponents, including advocacy organizations Fairplay, Center for Digital Democracy and Public Citizen, say the measure would benefit young web users.

Those organizations said in a letter sent to lawmakers earlier this year that the bill aims to “hold social media companies accountable after their repeated failures to protect children and adolescents from the practices that make their platforms more harmful.”

But critics argue that the proposed law's broad mandate to act in users' best interests -- including by curbing content protected by free speech principles, such as material associated with eating disorders -- is both unworkable and unconstitutional.

“There is no way to accurately identify what content might exacerbate self-harm, suicide, eating disorders, or substance use disorders,” TechFreedom and the law professors write.

“A picture of a thin fashion model might be entirely harmless to one person, and trigger body image issues in another,” they write. “Would articles advocating drug policy reform constitute 'promotion' of narcotic drugs? Could a platform be held liable for allowing minors to view or post popular music that references these topics in a positive light?”

The letter also states that web companies may decide that the least risky step is to block all content even potentially related to eating disorders, drug use or self-harm. But that move would deprive minors of “legitimate and useful” content -- including material that could prevent harm, such as anti-tobacco campaigns -- the letter says.

TechFreedom and the academics also say the law would effectively require web sites to institute age verification procedures before allowing any to access a broad range of material -- “including information about abortion ... fringe ideologies, drug abuse, gambling, and other topics that adults may have entirely lawful reasons to inform themselves about.”

Courts have previously ruled that mandatory age verification violates the First Amendment.

The new letter comes one week after dozens of digital rights organizations, including the ACLU, Electronic Frontier Foundation and New America’s Open Technology Institute, criticized the bill in a letter to lawmakers.

The groups wrote that the bill “has laudable goals,” but also “presents significant unintended consequences that threaten the privacy, safety, and access to information rights of young people and adults alike.”

If passed, 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,” those groups wrote.

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