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Wednesday, Sept. 21, 2022
Congress failed, so now states are stepping up
Congress has vowed to pass legislation to rein in Big Tech companies for years. But as legislation aimed at taking firms to task stalls, U.S. states have stepped in to fill the void.
The latest strikes come in the form of a first-in-the-nation California law designed to protect kids’ online privacy. AB 2273, which goes into effect in 2024, joins a controversial Texas law upheld by the 5th U.S. Circuit Court of Appeals on Friday that conservatives hail as a win against sites they say censor their speech.
But those aren’t the only states attempting to bring social media platforms to heel. States across the country from Mississippi to New York have introduced bills seeking to hold companies like Meta (META), Twitter (TWTR), Snap (SNAP), and TikTok accountable for the content they host or choose to remove.
And the raft of laws is unlikely to stop anytime soon.
“I think, to some extent, what we're seeing right now is people have some experience about what social media is over a 10-year period now, so you're seeing a lot of people react in various ways to that,” Anthony Fargo, associate professor at The Media School at Indiana University Bloomington, told Yahoo Finance.
The main problem with that — outside of potential free speech violations — is that regulating global companies on a state-by-state basis will create a morass of potentially conflicting laws and case law. That could make it impossible for platforms to govern themselves and for users to see any improvements to their online experiences.
How are we going to fix that problem? The solution might be on Capitol Hill.
Taking social media platforms to task
Texas’s and California’s laws are strikingly different. Texas’s HB 20 came about as a result of conservatives’ complaints that social media sites censored their speech. While no evidence of a collective effort to silence conservatives has been uncovered, Texas moved forward with the law, which allows residents to sue companies that remove their content.
Florida passed a similar law, though a federal appeals court found it unconstitutional because it infringed on social media companies’ First Amendment rights. Both the Texas and Florida laws will now likely end up before the Supreme Court, where there’s a chance that the conservative majority could uphold them.
California’s AD 2273, meanwhile, is designed to keep platforms from letting kids publicly post content online by default. It also seeks to prevent services from collecting, selling, and storing location data about those same children, and to stop platforms from encouraging children to provide personal data.
“I think it's probably fair to guess that we're seeing [these laws] now because of the cumulative experience with social media, the inadequacy of social media companies’ own self-regulatory step, and the pressure, in some of these instances, of our hyper-partisan political environment, and those influences have been building and are kind of breaking through now,” explained NYU School of Law adjunct professor Paul Barrett.
And it’s likely that more states will jump on the bandwagon moving forward, with approaches being split between red states and blue states, Barrett added.
Red states, he explained, will likely continue to focus on supposed censorship of conservative voices, while blue states will aim to protect privacy and curb hate speech.
A mishmash of laws won’t work
While both Republicans and Democrats will likely run into problems with their respective laws, critics already predict California’s law could hurt children and suppress free speech via age gating technologies that require users to provide their year of birth to prove they’re old enough to access content. Texas and Florida’s laws, meanwhile, have been bashed for stifling platforms’ free speech rights by forcing them to host content they don’t want to.
Despite the criticism, legislatures will likely continue bringing laws forward unless Congress passes federal laws that govern social media sites.
To be sure, Congress has faced pressure to pass laws that specify how social media can regulate speech and how it should protect kids. Heck, none other than Meta CEO Mark Zuckerberg and former Twitter CEO Jack Dorsey have specifically called on Congress to pass legislation governing their services. Of course, they’d assuredly like to have a say in how those laws are crafted.
Part of the reason Zuckerberg and Dorsey want those kinds of laws put into place is that it would make running their companies a heck of a lot easier if they had to abide by one sweeping piece of federal legislation rather than a cavalcade of state laws with different aims.
“It's great that the states have privacy enforcements and regulations associated with it,” explained Carnegie Mellon University Heinz School of Business professor Ari Lightman, “but what does this mean for a social network that operates globally?”
We’ve seen tech firms in different industries beg for federal regulations rather than a patchwork of state laws in the past. Self-driving car companies have repeatedly called on Congress to pass legislation governing how those vehicles are regulated so they can streamline their designs and requirements, rather than having to meet the demands on different state legislatures.
And while you won’t be driving a Facebook-powered car anytime soon, I hope, social media companies are no different in wanting to deal with one piece of legislation than laws from 50 different states.
How and when Congress acts, however, is entirely up in the air. We’ve seen any number of legislative proposals come forward — including those that limit how much data sites can collect on younger users, bills that allow users to opt out of using social media sites’ algorithms, and laws that force sites to share information about how their services work with third-party researchers. But so far, Congress has nothing to show for it.
With the midterm elections approaching and lawmakers more focused on getting re-elected rather than passing new laws, it’s unlikely any of these proposals will become the law of the land. It looks like we might end up stuck with a mess of state laws for years to come.