Corrupting the Youth: KOSA and Greek Philosophy

-- By MichaelMacKay - 11 Jan 2025

One Poet, Two Greeks

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In Aristotle’s Poetics, why is Homer a poet but not Empedocles? Both Greeks’ works are written in hexameter verse, but for Aristotle, poetry does not turn on prosody alone. Rather, Empedocles is a philosopher,[1] and today, that distinction is increasingly relevant, as the Kids Online Safety Act (KOSA) threatens to mistake measurement for meaning.

Put differently, rooting out all the “harms” under KOSA's duty of 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 always count the most. Aristotle says “[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.”[3] Hence, applying statistical models in a top-down manner tends to affix meaning rather than infer what the text means in context,[4] and by that measure, KOSA’s requirement that platforms monitor children’s patterns of usage and publicly disclose the results wrongly treats online expression as univocal.

One Flaw, Two Bills

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Introduced in 2022, KOSA infantilizes online expression as something that can be aggregated and averaged, which overburdens the law’s “duty of care” under Sec. 101(2)(a) (“Prevention of Harm to Minors”) in both House and Senate 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]”

But consider how the underlined portion can be read either narrowly or broadly. The latter interpretation likely implicates most changes to UI/UX, whereas the former imposes liability on a subset of features intended to prevent and mitigate such harms (e.g. a new default setting that automatically changes an app’s color temperature by the hour so as 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) reads out “mitigate” (as both preventing and mitigating harms means exempting some design features that merely mitigate). Traditional rules of statutory construction would disfavor such uncharitable interpretations, but KOSA’s proposed apparatus for collecting and crunching data is prone to miss such nuance (elsewhere, United Healthcare's application of AI to insurance claims purportedly suffered a 90% error rate). Critically, nowhere is the mechanical approach to online expression more befuddled than the Senate's latest amendment on "compulsive usage."

One Amendment, Two Compulsions

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In December 2024, the Senate hardened kids’ virtual cages while softening some "harms" for covered platforms by striking language like "predatory... marketing." Previously, Sec. 101 of the bipartisan bill had defined “compulsive usage” as “any response stimulated by external factors that causes [sic] an individual to engage in repetitive behavior reasonably likely to cause psychological distress, loss of control, anxiety, or depression.” But now, it is “a persistent and repetitive use of a covered platform that significantly impacts [emphasis] one or more major life activities of an individual." Yet, how exactly is a “covered platform” to know what really impacts the lives of children?—apparently, through commercial surveillance, because Sec. 102(a) (“Duty of Care”) now says: “(III) Patterns of use that indicate compulsive usage.”

Ascertaining such “patterns” implies averaging across millions of online communications, so nothing would really be learned as to any one particular minor’s use of Discord or Reddit. Blindly, though, such firms must be intrusive to establish what is “compulsive,” so while Sec. 102(a)(II) may suggest that some health care professionals will play a role in guiding FTC enforcement (“clinically diagnosable symptoms”), minors’ privacy breach is probably the only foreseeable harm within the risk, as "anonymized" data can be utilized and are valuable to firms. Notably, Meta cannot even effectively flag disturbing adult content for removal, so increasing corporate vigilance will simply result in a greater number of overseas adults surveilling American kids. Developers can build stronger nets for smaller fish, but some brain development will be misapprehended as “brainrot” whenever adults are not in on the joke. Before, it was problematic that “compulsive usage” under Sec. 101(3) was predicated on external factors “reasonably likely to cause” such compulsion, but now, it is worse that these criteria have given way to a set of factors that “significantly impacts” kids. Overall, the shift from probable to actual knowledge underscores how “covered platforms” will probably incur KYC obligations like mandatory age verification, as the EFF has predicted.[4]

First Amendment, Second Act

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In The Age of Surveillance Capitalism, Zuboff recounts the FTC’s $2.2M settlement with Vizio in 2017 after it was discovered that Vizio's TVs were secretly watching their owners at home.[5] Today, Vizio's business model depends on customer data which could make it liable as a “covered platform” under KOSA, and generally, the ever-expanding IOT complicates KOSA’s paternalistic goals (e.g. should Mattel sell at least 10 million “smart” Barbie dream homes that children play with, why would that not be an “online video game” regulated under Sec. 101(11)?).[6] Assuming arguendo that KOSA is constitutional under the First Amendment,[7] the 119th Congress should seriously reconsider KOSA’s policy goals. Recently, social media companies like Meta have demoed their "AI agents" communicating with in-app users, and guarding against such use of large language models may better support kids’ online engagement without suffocating their self-expression. After all, statistical models are poor proxies for communicative genius, and where G2 estimated Reddit users made some 550 million posts last year alone, there was probably at least one philosophical haiku written by a kid.

Endnotes:

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.
6. Ibid, p. 171.
7. 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”).

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