Digital Content

In the aftermath of [recent horrific mass shootings], some of the responses from internet companies include ideas that point in a disturbing direction: toward increasingly centralized and opaque censorship of the global internet. Facebook, for example, describes plans for an expanded role for the Global Internet Forum to Counter Terrorism, or GIFCT.

Over 20 years ago, the US Supreme Court unanimously decided Reno v. American CivilLiberties Union (ACLU), which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying a strict scrutiny judicial review standard under the First Amendment, the Supreme Court concluded that unlike broadcasting (where the FCC’s “indecency” content regulation consistently has been upheld due to the unique characteristics of that medium), no government regulation would be constitutionally permissible—even for online child protection.

Accusing Twitter and Facebook of suppressing conservative voices, Sen Ted Cruz (R-TX) floated an overhaul to a key law that protects Internet platforms from legal liability for content posts on their sites, breaking up the companies, or even charging them with fraud. His three-part playbook: 

Facebook spent 3 hours detailing its efforts to fight misinformation, highlighting points of improvement but leaving unanswered the overarching question of whether users are safer than they were 2 years ago. Facebook is getting better at both detecting and removing some types of content, with a particular focus on efforts to subvert democratic elections. But other types of negative content remain prevalent on Facebook. Facebook's pledge to shift toward private, encrypted conversations is likely to make it harder for the company to monitor and remove objectionable content.

There can be little doubt that the major digital companies have gained a level of economic control akin to the industrial barons of the Gilded Age. It is important to take steps to introduce much needed competition into the digital marketplace. Clearly, a more active review of mergers is necessary, even when the acquired company is comparatively small.

Republicans led by Sen Ted Cruz (R-TX) pilloried Facebook, Google and Twitter over allegations they censor conservative users and news sites online, threatening federal regulation in response to claims that Democrats long have described as a hoax.

Sens Ron Wyden (D-OR) and Cory Booker (D-NJ) and Rep. Yvette Clarke (D-NY) introduced the Algorithmic Accountability Act, which requires companies to study and fix flawed computer algorithms that result in inaccurate, unfair, biased or discriminatory decisions impacting Americans. The Algorithmic Accountability Act would:

In short, the Save the Internet Act would repeal the Federal Communications Commission's Restoring Internet Freedom Order adopted in 2017 (although it did not go into effect until 2018). But the act was amended on its way to passage by the full House of Representatives; the legislation now also includes the following provisions:

Sens. Mark R. Warner (D-VA) and Deb Fischer (R-NE) have introduced the Deceptive Experiences To Online Users Reduction (DETOUR) Act, bipartisan legislation to prohibit large online platforms from using deceptive user interfaces, known as “dark patterns” to trick consumers into handing over their personal data.