1. Ibid, p. 171.
2. See NetChoice v. Bonta (where the Ninth Circuit upheld a preliminary injunction against the California Age-Appropriate Design Code Act's DPIA requirement resembling KOSA’s “duty of care”).

1. See NetChoice v. Bonta (where the Ninth Circuit upheld a preliminary injunction against California’s Age Appropriate Design Code Act DPIA requirement resembling KOSA’s “duty of care”).

1. Literally, a “physiologist,” as Aristotle says “φυσιόλογος,” versus the kind of philosopher of Aristotle’s day (“φῐλόσοφος”).
2. Aristotle, Poetics, p. 38: “there is at times no word in existence; still the metaphor may be used.”
3. Ibid, p. 28.
4. n.b. Sec. 107(a) authorizes a joint report between the FTC and Commerce Department on age verification.
5. Zuboff, p. 170.

1. See NetChoice v. Bonta (where the Ninth Circuit upheld a preliminary injunction against California’s Age Appropriate Design Code Act’s Data Protection Impact Assessment (DPIA) requirement resembling KOSA’s “duty of care”).

1. Ibid. Literally, a “physiologist,” as Aristotle says “φυσιόλογος,” which often differentiates the pre-Socratic from the kind of philosopher of Aristotle’s day (“φῐλόσοφος”).

One Poet, Two Greeks

1. Word count was parsed programmatically from Perseus; page count comes from Penguin’s reprint (1997).

1. Jason Kelley, "Kids Online Safety Act continues to threaten our rights online: 2024 in Review," Electronic Frontier Foundation, January 1, 2025 (n.b. Sec. 107(a) also authorizes a joint report between the FTC and Commerce Department on age verification).

Corrupting the Youth: KOSA and Greek Philosophy

-- By MichaelMacKay - 11 Jan 2025

One Poet, Two Greeks

Put differently, rooting out all the “harms” under KOSA by reasonable care is like rounding up all the poets in Poetics by dactyl. Meter is easy to measure, but what can be counted most easily does not necessarily count the most. What survives of Poetics is approximately 8,933 Attic Greek words, resulting in a paperback English edition of 144 pages (7.92 x 5.04″),[3] but such quantification confounds real inquiry when words themselves contain multitudes.[4] Thus, “[w]e should therefore solve the question [of what something means] by reference to what the poet says himself, or to what is tacitly assumed by a person of intelligence.”[5] Applying statistical models in a top-down manner tends to affix meaning rather than infer meaning from the text in context, and by that measure, KOSA’s requirement that platforms monitor patterns of children’s usage and publicly disclose such information appears to treat online expression as univocal—forgetting that “when a word seems to involve some inconsistency of meaning, we should consider how many senses it may bear in the particular passage.”[6]

One Flaw, Two Bills

"A covered platform shall exercise reasonable care in the creation and implementation *of any design feature to prevent and mitigate the following harms to minors*… [emphasis]”

Consider how the bolded portion of KOSA can be read as (1) a single objective genitive noun phrase (effectively, imposing a duty on any design feature that prevents and mitigates harms) or (2) a shorter such phrase followed by an underlined purpose clause (ergo, placing a duty on creating and implementing any design feature, in order that the covered platform may prevent and mitigate harms). The second interpretation likely implicates most changes to UI/UX, whereas the first imposes liability on a smaller subset of features (e.g. a new default setting that automatically changes an app’s color temperature by the hour to curb nighttime usage). Similarly, interpreting the conjunction “and” in “prevent and mitigate” as the logical operator found elsewhere in Sec. 101(3)(IV)(aa) tends to read “mitigate” out of the statute, since prevention exceeds mitigation (thus, both preventing and mitigating harms would exempt some design features that merely mitigate such harms from the “duty of care”). Traditional rules of statutory construction say that such uncharitable interpretations should be avoided,[7] but KOSA’s proposed apparatus for collecting and crunching data is prone to miss such nuance in minors' speech.[8] Critically, nowhere is the mechanical approach to online activity more pernicious than in the Senate amendment on “compulsive usage.”

One Amendment, Two Compulsions

Again, ascertaining such “patterns” implies averaging across millions of minors’ uploaded content and online footprints, so there is no real knowledge as to any one minor’s particular use of Discord or Reddit. Blindly, though, firms are required to be intrusive to establish what is “compulsive,” so while Sec. 102(a)(II) (“clinically diagnosable symptoms”) suggests that some doctors may play a role in guiding FTC enforcement, the need for “covered platforms” to ensure compliance also suggests that data collection will be exhaustive to err on the side of caution,[9] meaning that minors’ privacy breach is the only real foreseeable harm within the risk.[10] Notably, Meta cannot even automatically flag disturbing content for removal,[11] so increasing platforms’ vigilance against kids’ “compulsive usage” through proprietary algorithms that prove too much will probably lead to more foreign adults watching American kids. Surely, developers can build bigger nets for smaller fish, but some brain development will inevitably be confused for “brainrot” when adults are not in on the joke. Before the amendment, “compulsive usage” under Sec. 101(3) was predicated on external factors “reasonably likely to cause” but has been replaced by a system that “significantly impacts” kids, which also suggests that “covered platforms” will ultimately incur certain KYC obligations such as mandatory age verification, as the Electronic Frontier Foundation has predicted.[12]

First Amendment, Second Act

Endnotes:

1. Aristotle, Poet. 1447b.
2. Ibid. Technically, a “physiologist,” as Aristotle says “φυσιόλογος,” which often differentiates the pre-Socratic from the kind of philosopher of Aristotle’s day (“φῐλόσοφος”).
3. Word count was determined programmatically from Perseus; page count is Penguin’s reprint (1997).
4. Aristotle, Poetics, tr. S. H. Butcher, Pennsylvania Press (2000), p. 28: “there is at times no word in existence; still the metaphor may be used.”
5. Ibid, p. 38.
6. Ibid.
7. Robert Katzmann, Judging Statutes. Oxford University Press, 2014.
8. Estate of Gene B. Lokken et al. v. UnitedHealth? Group, Inc. et al. (where AI algorithm developed by nH Predict—now defunct—and employed by United Healthcare allegedly carried a 90% error rate in judging insurance claims).
9. Cecilia Kang, “F.T.C. Study Finds ‘Vast Surveillance’ of Social Media Users,” New York Times, September 19, 2024.
10. Nate Anderson, "Anonymized" data really isn't—and here's why not, Ars Technica, September 8, 2009.
11. Betsy Reed, “More than 140 Kenya Facebook Moderators Diagnosed with Severe PTSD,” The Guardian, Guardian News and Media, December 18, 2024.
12. Sec. 107(a) also authorizes a joint report between the FTC and Commerce Department on age verification.
13. Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019), p. 170.
14. Richard Lawler, “Vizio Makes Nearly as Much Money from Ads and Data as It Does from TVs,” Engadget, May 12, 2021.
15. Zuboff, p. 171.
16. NetChoice? v. Bonta (where the Ninth Circuit upheld a preliminary injunction against California’s Age Appropriate Design Code Act’s Data Protection Impact Assessment (DPIA) requirement resembling KOSA’s “duty of care”).
17. Miles Klee, “Facebook and Instagram to Unleash AI-Generated ‘users’ No One Asked For,” Rolling Stone, December 31, 2024.
18. Noam Chomsky, Ian Roberts and Jeffrey Watumull, “The False Promise of ChatGPT? ,” New York Times, March 8, 2023.
19. Sagaar Joshi, “51 Reddit Statistics to Analyze The Internet’s Front Page,” G2, October 4, 2024.

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