22 Democrats Sponsor a Bill That Could Censor Abortion Info From the Internet

The Kids Online Safety Act is “a blank check” for Republican AGs to "intimidate any way they can," a digital civil liberties advocate told Jezebel.

By Susan Rinkunas | October 12, 2023 | 10:00pm

Abortion Politics

22 Democrats Sponsor a Bill That Could Censor Abortion Info From the Internet

Illustration:Asier Romero (Shutterstock)

Imagine you’re pregnant and living in one of the 20-something states where abortion is banned or heavily restricted. You want to know if it’s feasible for you to get care in another state, or learn how to avoid the legal risk posed by ordering your own abortion pills. But, thanks to a bill passed with support from both Republicans and Democrats, you can’t access the websites or social media accounts for abortion funds or online forums where people answer abortion questions.

A controversial, bipartisan Senate bill could create this exact scenario. It purports to protect kids from algorithms that might recommend harmful content online, but advocates warn that it could end up censoring all internet users.

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The bill, the Kids Online Safety Act (KOSA), would create a “duty of care” requiring social media apps and websites to “prevent and mitigate” harms to children, including not recommending content that could cause anxiety and depression or could lead to “sexual exploitation and abuse.” A huge problem is that the bill would allow state Attorneys General to sue apps and sites if they believe certain content is harmful to minors—meaning AGs could weaponize the law to attack content they simply disagree with. In response, platforms likely would preemptively block content they think could get them sued.

Much has been made of the bill’s potential to lead to online censorship of LGBTQ+ content and sex ed info for everyone, not just kids, and groups including the ACLU oppose it. Despite these critiques, 22 Democratic Senators co-sponsor it—including, most recently, Sen. Elizabeth Warren (D-Mass.). Now, multiple civil liberties groups told Jezebel how KOSA could also censor content about abortion on sites ranging from social platforms like TikTok to abortion resource websites like Plan C. That could mean information about abortion pills, abortion funds that offer financial and logistical help, and legal resources for abortion seekers, whether they’re minors or adults.

Eva Galperin, director of cybersecurity for the Electronic Frontier Foundation (EFF), said letting AGs be the arbiter of what’s considered harmful is dangerous given the right-wing views many of them have on abortion. For example, 19 of 27 Republican AGs said this summer they wanted police to be able to investigate people for abortions. “I can’t think of anything that was more likely to cause anxiety and depression than being forced to carry a fetus to term that you don’t want,” Galperin told Jezebel.

Erasing abortion from the internet is a Republican fever dream. State lawmakers in South Carolina and Texas have introduced bills to censor abortion information online, though they have yet to advance. The Texas proposal seeks to ban internet providers from hosting information about abortion, and the bill text specifically names abortion pill site Aid Access, Plan C, and telehealth sites that don’t serve Texas, as sites that should be censored. The South Carolina bill appeared to use The National Right to Life Committee’s model legislation on censoring abortion, which essentially wants to make it illegal for anyone to provide information on getting an abortion, whether “over the telephone, the internet, or any other medium of communication.”

KOSA could help states achieve all these goals—and with the gleam of Congressional bipartisanship. If it passed, people would try to impede it with lawsuits arguing a First Amendment violation, but platforms would likely still censor content either on their own or in response to threats from AGs, and lawsuits can take years.

Sen. Ron Wyden (D-Ore.), who opposes the bill, told Jezebel in a statement that far-right politicians have made clear they’ll attack abortion access using any tool available, and that would include KOSA if it passes. “Under the guise of protecting children from harm, KOSA hands Republican state Attorneys General the power to scrub abortion information from the internet,” Wyden said. “Democrats who care about protecting women’s access to reproductive health care shouldn’t help Republicans censor essential information.” He said that both The Heritage Foundation and lead Republican sponsor Sen. Marsha Blackburn (R-Tenn.) want to use the bill “to advance their culture war aims”—namely, to antagonize transgender people. It’s not hyperbolic to think that abortion would also be a target.

How could KOSA lead to censorship?

Sarah Philips, a campaigner at Fight for the Future, a digital civil liberties group, says she worries that platforms like TikTok and Instagram would censor abortion posts in the face of “threats from the Ken Paxtons of the world” due to fears that they’d be held legally liable for this content being in front of minors. Philips previously worked as a reproductive justice organizer in Houston, Texas, and is familiar with AG Paxton’s antics. Philips said she was also worried about teens having limited access to groups like Jane’s Due Process, which help minors get a judicial bypass instead of parental consent for an abortion.

Cody Venzke, senior policy counsel of surveillance, privacy, and technology at the ACLU, said that while the intent of the bill is laudable, lawmakers need to be concerned about the impact. “As we’ve seen demonstrated over and over the past few years, many of the state Attorneys General are looking to score political points and to achieve political ends rather than enforce the law consistent with the Constitution,” Venzke told Jezebel.

To people who say, ‘Oh, surely the platforms will not do this,’ I recommend taking a look at the way platforms responded to SESTA/FOSTA

Just a threatening letter to websites or platforms could cause a chilling effect. To wit, a group of Republican AGs wrote to pharmacy chains in February warning them not to dispense the abortion drug, mifepristone, and Walgreens caved. Websites could also move to pre-emptively ban content they believe right-wing AGs would find objectionable because they don’t want to deal with the cost and hassle of lawsuits. Just look at what happened when states including Texas, Arkansas, and Louisiana passed laws putting age restrictions on porn: Pornhub responded by blocking traffic coming from multiple states rather than paying the cost to verify users’ ages. Plus, content moderation is an “inexact science,” Venzke said, and platforms and sites will end up taking down posts that don’t actually violate the bill.

“I view [KOSA] as a blank check for Attorneys General to be able to intimidate in any way that they can,” Philips told Jezebel. “They wouldn’t even need to necessarily pass this [state] legislation if you give them this tool,” she said, referring to proposals in Texas and South Carolina.

Galperin agreed that sites are likely to over-censor or “comply in advance” in order to avoid lawsuits. “To people who say, ‘Oh, surely the platforms will not do this,’ I recommend taking a look at the way that platforms have responded to SESTA/FOSTA,” Galperin said. She’s referring to the 2018 bills Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which were ostensibly meant to fight trafficking but resulted in the censorship of sex workers.

Philips also made the comparison to SESTA/FOSTA: “Sex workers in this case are calling attention to KOSA for the same reasons—they’re saying that this is going to be a tool for censorship and I believe them. We should believe them. They are proof and have been on the ground trying to call attention to how bipartisan efforts to censor the internet have affected the most marginalized people on the internet.”

KOSA “in some ways is more of a threat,” said Venzke. “Whereas SESTA/FOSTA tied much of its liability to federal criminal law, there is nothing in KOSA that so limits the legislation’s scope.” KOSA is about mitigating harms from anxiety and depression, which is extremely broad and subjective: “The portions of the duty of care are untethered to any particular legal definitions.”

Why are Democrats sponsoring KOSA?

To advocates like Venzke, it does seem like lawmakers have good intentions. “What I think we’re seeing here is frustration in Congress with the inability to really provide robust protections for people online,” he said. “Instead they are turning to what is politically available to them, which is kids, and doing so in language that is so broad that any policymaker can read into it what they’re hoping to regulate.”

But we all know that intent to “save the children” isn’t good enough, especially when members of Congress support bills like this amid the gross atmosphere of homophobia, book bans, and “grooming” allegations. Galperin compared this push to previous censorship and surveillance laws like the Patriot Act. “It’s just a variation on exactly the same thing that we saw with a slew of censorship bills in the early 2000s,” she said. “Except all you have to do is swap ‘save the children’ with ‘protect us from terrorists.’”

Philips says that at this point, it’s willful ignorance. “We’re telling [Democratic lawmakers] that this is going to be a tool to further attack abortion seekers, and they’re turning a blind eye to it.” She added, “These are a lot of people who have expressed at least surface-level support for people who are trying to access abortion.”

Is KOSA even legal?

Venzke said the ACLU believes the bill violates the First Amendment because it’s essentially saying that speech on certain topics is disfavored. The government would have to show that KOSA’s limits on speech are very narrowly tailored to deal with the harms it’s trying to solve, but KOSA is laughably broad. He said the Supreme Court has been adamant that, when trying to solve an issue, Congress should regulate speech as a last measure, and KOSA seems to violate that. Venzke said he doesn’t see this court re-writing First Amendment law.

In the meantime, Philips said, “My organization believes that what protects children is digital privacy and the ability to look up life-saving information online.” And information about abortion—as well as gender-affirming care, LGBTQ communities, and birth control—all qualifies.