Definition
Duty of care in the context of US internet regulation is a legal mechanism that obligates online platforms to take affirmative action to “prevent and mitigate” specified harms to users (typically minors). It originates in tort law, where it requires actors to take reasonable care to avoid foreseeable harm to others. Imported into KOSA and similar bills, it converts open-ended “harm” language (anxiety, depression, eating disorders, sexual exploitation, etc.) into a liability lever enforceable by state attorneys general and the Federal Trade Commission.
Why It Matters for the Newsletter
The duty-of-care construction is the structural innovation at the heart of the contemporary “child safety” legislative wave. Unlike direct content bans (which face clear First Amendment limits per Reno v. ACLU), duty of care operates as a liability incentive — the government doesn’t ban speech directly; it creates costs that pressure platforms to ban it themselves. This is the precise mechanism critics across the Bad Internet Bills Campaign cluster identify as the censorship vector.
Evidence & Examples
- Original critique (Greer, Vice, Dec 2022): LGBTQ Youth Are Under Attack — Why Are Democrats Pushing a Bill That Hurts Them More — first major articulation: “a duty of care is nebulous and is rarely certain until applied to specific facts and decided in court. That uncertainty allows right wing AGs to back into any definition that suits their political goals.”
- State AG abuse vectors: Texas AG Ken Paxton has called gender-affirming care “child abuse”; Arkansas AG Leslie Rutledge similar — these are the people who would define what platforms must “prevent” under KOSA’s duty of care. (LGBTQ Youth Are Under Attack — Why Are Democrats Pushing a Bill That Hurts Them More)
- Trump FTC weaponization (Oct 2025): Why Are Some Democrats Backing MAGA’s Anti-LGBTQ+ Censorship? — FTC under Trump hosted anti-trans “workshop” exploring how to use agency authority against gender-affirming-care providers; the agency that would enforce KOSA’s duty of care.
- SESTA/FOSTA precedent: Same liability-incentive logic; platforms over-moderated to the point of decimating sex-worker and sex-ed communities. See FOSTA.
- EFF / India McKinney: “We generally don’t like it when the government is trying to tell parents the correct way to parent their children.” (President Biden’s executive action on children and the internet)
Tensions & Counterarguments
- Defenders’ framing: Duty of care imposes only design obligations (algorithmic features, default settings), not content liability — KOSA was amended in 2023-2024 to emphasize design-feature focus. Critics counter that the line between “harmful design” and “harmful content” is impossible to enforce without content-level decisions.
- Liability without specificity: Because what counts as “harm” is undefined and subject to AG/FTC interpretation, the actual operational standard is unknowable in advance. Platforms respond by suppressing anything that might be deemed harmful — see SESTA/FOSTA precedent.
- Constitutional fragility: Duty of care is widely expected to face First Amendment challenges similar to those that defeated the Communications Decency Act indecency provisions in Reno v. ACLU — but with a more conservative SCOTUS, the outcome is uncertain.
Related Concepts
- KOSA — primary contemporary deployment
- EARN IT Act — uses similar liability-incentive logic for encryption
- FOSTA — historical precedent showing duty-of-care-style liability decimating marginalized communities
- Section 230 — the protection duty-of-care effectively erodes
- Censorship via Liability — broader pattern category
- FTC Weaponization — enforcement mechanism
Key Sources
- LGBTQ Youth Are Under Attack — Why Are Democrats Pushing a Bill That Hurts Them More
- This Bill Threatens Access to LGBTQ+ Online Communities — Philips
- This Bill Purports to Protect Kids From Big Tech — Bonesteel
- Why Are Some Democrats Backing MAGA’s Anti-LGBTQ+ Censorship?
- Bad Internet Bills — Fight for the Future Campaign Hub