Question For Staff: Protections against KOSA and similar legislation?

[Madam Mim]

I've looked all through the announcements and questions/suggestions boards to make sure I'm not asking something that's already been answered. Do please move the thread if it belongs somewhere else, but I'm genuinely surprised that this topic hasn't come up here.

So I'm not here to discuss politics and will in fact remain as neutral as I can on the topic, but it's definitely one that affects BMR and sites like it so I feel like it's an important conversation to have. Not sure how much staff follows US politics, so some brief background: In 2022 the Kids Online Safety Act (KOSA) was introduced following the 2021 Facebook leak. It's a bipartisan bill ostensibly designed to protect kids from cyber bullying and "harmful information," but is worded so broadly that "harmful information" could include anything from how to build a bomb to how to come out to your parents as trans. The lawmakers who passed the bill can't even agree on what it means for the LGBTQ+ community, with the Republican claiming it's needed for "protecting minor children from the transgender in this culture" while the Democrat insists it "does not target or censor anyone, including members of the LGBTQ community."

Full original text is here. Wikipedia article is here.

Obviously, BMR doesn't allow minors. I'm nowhere near an expert in legalese, but I've been seeing a lot of concern across queer-friendly and sex-positive spaces about the fallout of the broad wording of KOSA and how state attorneys general will interpret and apply them. There are concerns that KOSA could be used to target porn sites and shut them down, despite being ostensibly concerned with sites minors are likely to access. Our politicians are old as shit and don't understand how the internet works, and bad actors are taking advantage of that. See also: FOSTA-SESTA and its spectacular backfire. It passed the Senate last month, but fortunately, KOSA is dead in the House.

Unfortunately, it's likely not the last we'll hear of it or bills like it. Texas, Nebraska, and other states have enacted laws aimed at "protecting the children" which in effect force a user to share their actual government ID to prove that they're 18+ before accessing adult websites. There's a push from specific political groups harder now more than ever to strip internet privacy and make the government a household's parental blocks even in households without kids. This is the part where I avoid further editorializing, but needless to say I've got strong feelings about it.

So my question is: what protections, if any, does BMR have against such laws as these regressive movements pick up steam? Unless I'm mistaken, the servers live in the US and are therefore subject to US laws, yes? I personally don't have any particularly taboo RPs and I know that I would absolutely not want my BMR account associated with my government name, let alone anyone else on here whose tastes run a little more unique. Not all users want or can afford to use a VPN. It also potentially puts our LGBTQ+ citizens in danger of losing jobs, homes, and loved ones if they're not out, are in an unsafe environment, or live somewhere that laws criminalize part or all of their existence, when this is a place they can come to be themselves.

I love BMR. I've been here 11 years and have been active the whole time. I've made some lifelong friends on this site and written some amazing stories. We've got a great community, fantastic moderation, and it feels like a friendly and more importantly safe place to be for adult-themed writing. I dunno what sort of conversations go on with staff behind the scenes, but if there's not a way y'all've already figured out to protect us from draconian purity laws I figured I'd get the ball rolling before such a thing becomes a necessity instead of a just in case.

 

[Prose]

We have a policy to delete everything from a member if we discover that they're underage. We do a hard delete, rather than a soft one. Veks will give you a more in-depth replay later tonight or tomorrow if it'd make you feel better, but we already have measures in place to avoid issues.

 

[Madam Mim]

We have a policy to delete everything from a member if we discover that they're underage. We do a hard delete, rather than a soft one. Veks will give you a more in-depth replay later tonight or tomorrow if it'd make you feel better, but we already have measures in place to avoid issues.

My concern isn't so much underage users. I'm well aware of how strict you guys are about both jail bait and predators and that's one of the things I really like about here. It makes me feel fairly confident that I'm not going to wind up in trouble because I didn't know my partner was under 18, or that the site is gonna get shut down any minute because there was gross stuff going on that I wasn't aware of since I generally mind my own business. I've honestly never been worried about that sort of thing on BMR.

My concern is what if any protections are in place against laws that target websites like this in the name of "protecting the children." The children aren't a reason, they're an excuse (this is where I start editorializing) for targeting LGBTQ+ folks, people who don't view sex as for utilitarian baby making purposes, kinksters, furries, etc. Even if they're not using these laws, as I believe, to make lists then they're using them to curtail our freedom to do whatever we damn well please on the internet where we're not harming anyone. Regressive faith-centric laws (rooted in one specific interpretation of one specific faith) applied to all of us. Take the porn example in Nebraska and Texas, where PornHub and others have just straight-up stopped offering access in those states. If we're required to show our real government IDs to write on BMR due to similar laws being passed either in whatever state the servers are held, or worse federally, that's going to effect everyone here regardless of where in the world they live.

 

[Prose]

Yes, I read that part, but I'm not really sure how to answer that. It's a lot of hypotheticals at the moment. Sure, some agencies or hardliner politicians would like to target anything and everything that they can, but an actual law has to be broken to have any merit in court. It's still an uphill battle for them. Veks will reply later with a more in-depth reply to your concern. I can really only comment on what is actionable.

 

[Vekseid]

My concern is what if any protections are in place against laws that target websites like this in the name of "protecting the children." The children aren't a reason, they're an excuse (this is where I start editorializing) for targeting LGBTQ+ folks, people who don't view sex as for utilitarian baby making purposes, kinksters, furries, etc. Even if they're not using these laws, as I believe, to make lists then they're using them to curtail our freedom to do whatever we damn well please on the internet where we're not harming anyone. Regressive faith-centric laws (rooted in one specific interpretation of one specific faith) applied to all of us. Take the porn example in Nebraska and Texas, where PornHub and others have just straight-up stopped offering access in those states. If we're required to show our real government IDs to write on BMR due to similar laws being passed either in whatever state the servers are held, or worse federally, that's going to effect everyone here regardless of where in the world they live.

State jurisdiction is a thorny subject and understand this is not legal advice yadda yadda.

There are some factors to this:

The first is, written text enjoys such extreme protections in the United States that even the current supreme court - as conservative as it is - has been extremely supportive of the freedom of speech. Clarence Thomas was a part of 9-0 Internet freedom of speech decisions, though admittedly it was a lot crazier than KOSA and COPPA 2.0 here. Still, I don't think the Supreme Court will be favorable to particularly ridiculous interpretations of the law.

America's speech protections do come with downsides; I hope we can develop a culture of critical thinking rather than give up our freedom of speech.

The second matter is the limitations of state jurisdiction. A state's prosecutor is going to have to find a way to demonstrate standing to bring a case. This is easiest to do when the objectionable material itself is what is being sold, and is the normal route of attack for these sorts of lawsuits. Polk County, Florida, is pretty notorious for this.

We don't sell the stories written here. You don't pay to access anything objectionable.

This does mean it would be a bad idea legally for me to make a donor's-only section, for example, and it is one reason you don't see that here. Above and beyond donors specifically asking me not to back when I was more legally naive.

This isn't the end-all of it, of course, but there is case law that says just because you conduct a few dollar's worth of business in a given state, doesn't mean any asshole that manages to take power there magically owns you.

This sort of concept is also why I don't put up that ridiculous GDPR notice. I'm not subject to EU law, don't 'primarily do business' with them, and don't use any tracking services that they have their thumb up their butts about anyway.

Which brings me to my third point, these sorts of prosecutors seek out battles they think they can win and win easily and possibly establish case law, or that are big enough to score major political points. Previous such takedowns (see Red Rose Stories, for example) had audiences in the dozens or even less. Or were not the direct charge but tacked on as an extenuating factor in the lawsuit.

E and BMR have a regular monthly audience of some ten thousand people between them, between those with and without accounts. This is obviously tiny compared to e.g. Pornhub or Reddit, but there is no name recognition to gain from going after us. On the converse, assuming we don't have any resources would be... curious.

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Of course, Project 2025 intends to bring this to the national level, with a blanket porn ban and numerous other 'interesting' policies.

About the only immediate thing I can do there is remind American members to check their voter registrations, and ask people to think about what team weirdo represents in their voting plans.

 

[Madam Mim]

All of this is good to know. Thank you! Project 2025 is definitely a concern for this and many other reasons, but in the most extreme cases I imagine a server migration might be in order. But overall it's good to know that written word is generally more protected and trend in morality laws are less of an immediate threat to BMR and other RP sites specifically.