Politics
Senate-Passed Social Media Bill Could Muzzle Drug Policy Advocacy And Put Privacy At Risk, ACLU Says
Legislation passed last week by the U.S. Senate would set a number of restrictions on social media activity in an effort to protect the well-being of children. But the proposal—which prohibits social media companies from showing minors content that promotes alcohol, tobacco, drugs or gambling—also raises free speech and privacy concerns and could end up muzzling online drug policy reform activism, advocates say.
Senators passed S. 2073, the Kids Online Safety and Privacy Act, on a 91–3 vote on Tuesday. If it becomes law, it would make social media platforms responsible for ensuring that the advertisement, marketing or promotion of drugs, alcohol, tobacco or gambling does not reach “minors,” defined in the bill as people “under the age of 17.”
Despite the Senate’s overwhelming approval of the bill, however, some advocates warn that the proposed change will cause platforms to overly restrict speech, censor political advocacy, limit access to educational information and potentially impose age-verifications that put patient and consumer privacy at risk.
Jenna Leventoff, ACLU’s senior policy council and director of the civil right’s group’s national political advocacy division, believes the legislation, which she referred to by the acronym KOSA, is likely unconstitutional. She wrote a blog post arguing it would “violate the First Amendment by enabling the federal government to dictate what information people can access online and encourage social media platforms to censor protected speech.”
Notably, the bill as passed by the Senate doesn’t appear to apply to content around marijuana, psychedelics, or a number of other federally illegal substances. It would prohibit the social media advertising, promotion, marketing “of narcotic drugs (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), tobacco products, gambling, or alcohol” to people 16 or younger.
The CSA’s definition of “narcotic drugs” includes substances like opioids and cocaine, but it doesn’t apply to cannabis or psychedelics.
It’s unclear whether that omission was intended, but Leventoff at ACLU said that regardless of whether the bill technically applies to those substances, it’s likely that content would still be censored if the measure becomes law.
“At the end of the day, the platforms are risk adverse,” she told Marijuana Moment, “and are likely to censor any content that could cause one of the other listed harms to minors, like anxiety, depression or substance use disorders. While we can’t know for sure, that is part of the problem. KOSA is extremely vague, leaving open the door for the federal government or platforms to censor a broad array of content, including, potentially, cannabis-related content.”
As for what the restrictions might look like in practice, Leventoff said the bill’s vagueness, combined with imperfect content moderation tools and processes at social media companies, could end up both censoring content and asking people to submit to identity checks before accessing drug-related content.
“Content moderation tools are not particularly good,” she said, “and so it will be difficult for the platform to know the difference between someone selling drugs online versus, you know, something else about drugs.”
And that other drug-related content—such as drug education, harm-reduction information and legalization advocacy—”is probably going to have the same keywords or images associated with it” as the advertisements or promotions that KOSA is intended to keep away from young people, she added.
“We already see this happening with platforms’ existing terms of service,” Leventoff noted. “For example, some platforms have rules against advertising abortions, and because of that, content from Planned Parenthood that is not advertising abortion is taken down.”
She also pointed to bans on sexual content that have blocked LGBTQ+ creators from publishing content around advocacy or their experiences as queer people despite the content not being sexually explicit or in violation of a platform’s terms of service.
Another likely consequence of the bill, Leventoff said, would be an increase in age-gating by social media platforms—a step that might ask users to provide a government ID or other proof of age, which both removes a user’s anonymity and bars participation by people who don’t have or can’t obtain an ID.
She gave the example of a medical patient who might be curious about whether marijuana could help treat their ailment. Even if a social media platform allowed drug-related content, she noted, a person might not be able to access it if they’re unwilling to provide their identity in order to access the information.
“There’s a chilling effect there,” she said. “You could be deterred from looking because your information will be associated with what you were looking at. For many people, that’s enough to stop them from looking altogether.”
Similar hesitation and privacy worries have been seen in states that require people to put themselves on government rolls in order to access medical marijuana.
ACLU has offered amendments to the Kids Online Safety and Privacy Act that Leventoff said would address many of the organization’s broader concerns with the bill. For now, she said, she’s skeptical the legislation would pass constitutional muster.
A number of states have attempted to adopt bills similar to KOSA, she pointed out, and “in almost every case, a court has evaluated those laws and determined that they are likely to be unconstitutional.”
“It’s extremely likely that KOSA is unconstitutional,” she continued,” and it makes me wonder why Congress is trying to enact something that won’t hold up in a court of law.”
Earlier this year, Colorado’s state Senate passed a bill similarly aimed at protecting minors from drug and other controversial content. The proposal—which has since been put on hold indefinitely by a House committee—drew fire from Shoshana Weismann, a fellow at the free-market R Street Institute. She and other critics pointed out that the bill could ban content around over-the-counter cough syrup and even, potentially, the Colorado governor’s social media posts in favor of the state’s legal psychedelics industry.
As for the federal Kids Online Safety Act, Weismann said she wasn’t sure how much the bill would impact content around substances like marijuana or psychedelics given that they’re not included in the relevant section of federal code defining narcotic drugs, but she said that the legislation in its current form “incentivizes platforms to suppress all kinds of content that could cause mental health disorders or substance use disorders, which is why both pro-life and pro-choice groups oppose it.”
“Even news content about wars or climate change could cause minors anxiety and platforms would be at fault,” she wrote in an email to Marijuana Moment. “It’s not hard to guess what this means for marijuana: platforms are likely to censor even research about the substance in order to avoid liability. Some platforms will censor this content for all users—not just minors—in order to further avoid liability here, as segmenting adults and minors is not an easy task.”
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Douglas Berman, a law professor at Ohio State University who leads the school’s Drug Enforcement and Policy Center, said he wasn’t familiar with the details of KOSA but noted that the U.S. Supreme Court is set to take up a case regarding a Texas law that critics argue “significantly burdens adults’ access to protected speech” even though “the law’s stated purpose is to protect minors.”
The outcome of that case could have implications for KOSA, as well.
At the state level, most jurisdictions already have laws that are meant to restrict licensed cannabis businesses from advertising to children, though they often don’t hold social media companies responsible for policing online content, nor do they typically attempt to filter out pro-marijuana content posted by individuals or non-industry groups.
Under existing regulations, states that have legalized have actually seen less cannabis consumption among young people compared to states where marijuana remains illegal, according to a recent study in the Journal of the American Medical Association (JAMA) Pediatrics. That study found that legalization was generally associated with more young people reporting not using marijuana, along with increases in those who say they don’t use alcohol or vape products either.
The observations reinforce previous findings that legalizing and regulating marijuana for adults typically does not increase youth use of the substance, contrary to what opponents of the policy change often argue.
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