Blumenthal revealed a revised KOSAS in the past few days. It isn't revised enough to be workable.
Problems seen at first glance:
Section 11(b) Enforcement by State Attorney General is still too broad and vague. It should either be struck or it should be so narrowly tailored that it stands up to scrutiny. Past this, it needs to align with standing precedent so that it's not an excuse for S.A.G. to throw everything it can at the courts hoping to wriggle through some sort of personal win for the S.A.G. to run for office on.
Section 4(c) reporting mechanism could be abused in theory by malicious actors as it requires a substantial response within a time frame or else it is a violation of the Act. If I am reading it correctly, it may subject covered platforms (which is broad enough that saying "everything on the internet" isn't far from technically correct) to penalty if they are flooded with reports at a scale they are not prepared for. This could then be used by an AG as a reason to hammer the company with a big attention grabbing lawsuit, since there is no distinction in the bill to flooding and normal reporting, or perhaps even a flood of genuine reports in response to a harrassment campaign of reportable postings ("raiding"). In addition to those concerns, a resource should be provided through the statute that could provide limited-circumstance exemptions through being capable of determining why a notable increase in volume of reports has occurred should that occur (perhaps with reporting requirements of it's own), and if it falls under some sort of definition of malicious manipulation effort offer a time-period based exemption (due to the swamping of process) rather than jumping straight to the threat of punitive measures after 21 days or whatever it was I read. Another option is a penalty for using the reporting system in an incorrect way, but that would be a terrible idea for obvious reasons.
Section 6(b)(2) is unnecessary and far too broadly subjects tiny websites like discussion forums for niche topics to the mandate to (presumably pay to) hire a 3rd party consultant to evaluate their website. This apparently includes disclosing what appears to be a large amount of information and access for the evaluation. 6(b)(1) mandates for very large platforms are much more defensible as those should be increasingly likely with scale of some aspect of the business that is useful to measure this by to have the resources, as well as staffing capabilities.
In reflection there was a section that established a committee of some sort (not the one with the striking name that will probably be troublesome in makeup [risk of profitable charlatanism in several categories of members] but we'd see) where state AG were essentially making policy as part of the board. I had thought that wasn't their purview. However it will bear reflection upon how that policy will impact Section 11(b) Enforcement by S.A.G.
Analysis: Very likely to be picked apart by the courts due to obvious bits of unconstitutionality in particular on vagueness and failing to be narrowly tailored remedies, as well as many, many, many implications regarding the 1st Amendment. It does have a severence section, so it's designed in the hope that a majority of the useful portions survive, but I think many parts will be excised by striking court decisions and probably even some preliminary injunctions despite the high bar. This of course is not an ideal way to legislate and I do think it should be taken back and hammered into a more suitable shape prior to hammering through wrong shaped hole so to speak.
Here is a far more knowledgeable source of information than I about this bill:
https://www.techdirt.com/2024/02/20/dont-fall-for-the-latest-changes-to-the-dangerous-kids-online-safety-act/Attorneys General Can Still Use KOSA to Enact Political Agendas
As we mentioned above, the enforcement available to attorneys general has been narrowed to no longer include the duty of care. But due to the rule of construction and the fact that attorneys general can still enforce other portions of KOSA, this is cold comfort.
For example, it is true enough that the amendments to KOSA prohibit a state from targeting an online service based on claims that in hosting LGBTQ content that it violated KOSA’s duty of care. Yet that same official could use another provision of KOSA—which allows them to file suits based on failures in a platform’s design—to target the same content. The state attorney general could simply claim that they are not targeting the LGBTQ content, but rather the fact that the content was made available to minors via notifications, recommendations, or other features of a service.
We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities. And KOSA leaves all of the bill’s censorial powers with the FTC, a five-person commission nominated by the president. This still allows a small group of federal officials appointed by the President to decide what content is dangerous for young people. Placing this enforcement power with the FTC is still a First Amendment problem: no government official, state or federal, has the power to dictate by law what people can read online. (note by Duuvian: the previous quoted sentence may be correct in ideal but IIRC is not absolute as there are very narrow exceptions, and these must be very narrow due to the prevalence of abuse of power when such limits on speech are not narrowed to the utmost)
As a conjecture of my own, I recently found this
Schlesinger phases of American history[1][2][5]
From To Duration Type Name
1776 1788 12 Lib Liberal Movement to Create Constitution (Revolution, Confederation Period)
1788 1800 12 Con Hamiltonian Federalism (Federalist Era)
1800 1812 12 Lib Liberal Period of Jeffersonianism (Jeffersonian democracy)
1812 1829 17 Con Conservative Retreat After War of 1812 (War of 1812, Era of Good Feelings)
1829 1841 12 Lib Jacksonian Democracy (Jacksonian democracy)
1841 1861 20 Con Domination of National Government by Slaveowners (Origins of the Civil War)
1861 1869 8 Lib Abolition of Slavery and Reconstruction (Civil War, Reconstruction Era)
1869 1901 32 Con The Gilded Age (Gilded Age)
1901 1919 18 Lib Progressive Era (Progressive Era, World War I)
1919 1931 12 Con Republican Restoration (Roaring Twenties)
1931 1947 16 Lib The New Deal (Great Depression, World War II)
1947 1962 15 Con (Postwar Era, The Fifties)
1962 1978 16 Lib (Civil Rights Era, The Sixties)
1978 Con (Reagan Era).
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