The Kids Online Safety Act has gained support from right-wing groups that want to crack down on LGBTQ content, and now Senator Elizabeth Warren.
Evan Greer is a transgender activist, musician and writer based in Boston. She’s the director of the digital rights non-profit Fight For The Future.
Senator Marsha Blackburn was recently caught on camera saying the goal of her bill, the Kids Online Safety Act (KOSA), is to “protect minor children from the transgender in this culture.” That’s not that surprising. Senator Blackburn is one of the most anti-LGBTQ members of the Senate, and has said many terrible and offensive things about transgender people. What is surprising, is that Massachusetts Senator Elizabeth Warren, long seen as an LGBTQ ally, apparently wants to help Blackburn advance her legislative attack on our community.
This week, Senator Warren became a co-sponsor of KOSA, a dangerous and misguided bill that will make kids less safe, not more safe. KOSA is supported by right-wing groups that have campaigned against LGBTQ rights for decades, like NCOSE and Heritage Foundation, explicitly because it will allow conservative State Attorneys General to crack down on LGBTQ content under the guise of “protecting kids.” The bill seeks to address legitimate harm, but is written in such a way that it allows trans and LGBTQ youth to be exploited for cheap political points.
Senator Warren is absolutely right that Big Tech companies are out of control and need to be regulated. We’ve cheered her support for antitrust and privacy legislation. But KOSA will make the harms of Big Tech worse, not better.
The bill has been roundly condemned by a broad coalition of civil society, LGBTQ rights, human rights, and racial justice organizations as well as parents of transgender children. Advocates have driven more than 300,000 emails and calls to lawmakers against KOSA, including many from young people who have been sounding the alarm about the bill on TikTok and other social media platforms.
Lawmakers are also expressing concerns. Rep Maxwell Frost (D-FL), the youngest member of the House, has come out against KOSA, along with Senator Wyden of Oregon.
Massachusetts Senator Ed Markey, a longtime champion of more privacy and safety protections for kids online, has also expressed concerns about KOSA. In the Senate Commerce Committee markup of the bill he said, “I commend the authors for their work on the bill, but I want to continue to work to modify the bill to fix the concerns that the LGBTQ community has been raising. More work needs to be done.”
Despite all of this, and over the objections of dozens of human rights groups like the Massachusetts Transgender Political Coalition and the ACLU, Senator Warren has decided to sign on as a cosponsor of KOSA. Worse, she has done so without securing a single change to the bill. Human rights and civil liberties groups are trying to hold the line to demand meaningful changes to protect LGBTQ and other marginalized groups that are being attacked in states, Senator Warren is breaking that line to help pass a deeply flawed bill.
I’d like to think that this misstep was unintentional, especially given Senator Warren’s long record of purported support for the LGBTQ community. At a time when my community faces unprecedented danger, I genuinely hope that the Senator does not care more about scoring political points by posturing as tough on Big Tech than she does about the actual substance of the legislation and whether it will help or hurt marginalized communities.
As a former law professor, Senator Warren should also know better than to cosponsor a bill that constitutional experts have said is blatantly unconstitutional as written. A court just found that California’s Age Appropriate Design Code, which KOSA borrows a lot from, likely violates the First Amendment, because it allows the government to dictate what content platforms can show to which users. The provisions that will almost certainly run afoul of the First Amendment are the very same provisions that will do damage to my community and that we’ve asked lawmakers to change.
KOSA might be redeemable. There are good faith supporters of the bill who want to take on big tech and stop exploitative practices that harm children and adults in the name of greed. But they’ve made a bad bargain and are refusing to make common sense changes that will not only protect marginalized communities but would also make the bill less likely to be struck down in court. Unfortunately, these supporters are trading the rights of marginalized people for expediency in passing a dangerous bill. They’ve made changes to KOSA, but none of them address the bill’s deadly flaws: it requires censorship and incentivizes invasive age verification.
I’d hoped Senator Warren wouldn’t make this kind of trade. It’s a deal that will have deadly consequences for the most vulnerable people in our society, especially transgender youth, who already face disproportionate rates of violence, discrimination, self-harm, and who are actively being targeted by extreme right wing legislatures and attorneys general. The very same attorneys general that KOSA will empower to censor online speech.
Senator Warren is an influential member of Congress. She’s a member of Democratic leadership and a former presidential candidate. And she’s shown thoughtfulness on these issues in the past. She rightly expressed regret over her support for SESTA/FOSTA, and introduced an important bill to study the harm it did to sex workers and LGBTQ rights.
I hope that Senator Warren will read the letter signed by hundreds of parents of trans and gender expansive kids, many of whom are from Massachusetts, and use her power to pressure changes in KOSA that will actually protect marginalized communities. As it stands, her cosponsorship advances policies that Sen. Blackburn and far-right hate groups hope will be used against my community.
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And you get it from both sides. Cobservatives will take those criticisms and say, “See? you should vote for DeSantis!” as though that’s a decision that has ever made a shred of sense for anyone.