Hot topic for 2022: technical regulations

My partner at the law firm, Jonathan Cohen, has closely followed the evolution of the regulation of social media and other major technology platforms by the current administration. It offers these thoughts on likely areas for legislative and regulatory action in this area over the coming year.

Many nights the last thing I do before I fall asleep is put my phone down, and the first thing I do when I wake up is pick it up. I suspect that I am not alone in this case. Internet-enabled digital technologies seem to have transformed the lives of most Americans, changing the way we conduct business, connect with each other, and receive information and entertainment. The advent of these technologies in recent years is what former FCC Chairman Tom Wheeler in his 2019 book From Gutenberg to Google, calls the “third great network revolution”, after the invention of the movable-type printing press and the innovations in transport and communications brought about by the railways and the telegraph. This new revolution is rapidly changing our information ecosystem.

Beyond the business opportunities and challenges presented for technology, media and telecommunications companies, as well as content creators, the societal impact of this third major network revolution is fascinating and far-reaching, but also potentially disturbing. Illustrating the power tech platforms wield over us, Taylor Lorenz of The New York Times recently reported on a conversation she had with a 10-year-old boy who was disappointed that no photos were available when he is googled. The boy felt he wasn’t a real person until his photo showed up in a Google search. Leaving aside the many sociological implications of the technological revolution, the technology sector is under scrutiny like never before. Its business model of tracking users’ online actions and using the data to sell targeted ads and power algorithmic amplification has been described by Harvard Professor Emeritus Shoshana Zuboff as “surveillance capitalism”. Others call it the “attention economy”.

All of this has led to a new wave of proposals to regulate the technology. Privacy and consumer protection issues abound, not to mention concerns about recent impacts on institutional and democratic standards. Congress is considering bipartisan antitrust legislation while the Biden administration and state attorneys general pursue lawsuits to limit Big Tech’s market power. Numerous bills have been introduced in Congress to reform the liability protection offered by Section 230 of the Communications Decency Act, which was enacted in 1996 when the World Wide Web was just beginning to gain traction. And dozens of other bills are pending that, if passed, would have broad implications for tech, media and telecommunications players. To only cite a few :

  • the Journalism Competition and Preservation Act 2021 (R.1735; S.673) would allow print, broadcast or digital media companies to bargain collectively with online content distributors (see our article here when this bill was introduced).
  • the Preservation of Political Speech Online Act ( 2338) would require the FCC to initiate a rule-making process to require any online platform or third-party advertiser that displays, hosts, or otherwise authorizes the advertising of a legally qualified candidate in an election for federal office of comply with “rules of fair access and equal opportunity.”
  • the US Online Choice and Innovation Act ( 2992) would prohibit major technology platforms from “unfairly” favoring products or services, “unfairly” limiting another user’s ability to compete on the platform, or discriminating in the application or performance of Terms of Use on the Platform in a way that could harm competition.
  • the Protecting Americans from Unsafe Algorithms Act (R.2154; S.3029) Amend section 230(c) of the Communications Act 1934 to remove immunity (with some exceptions) for large providers of interactive computer services for the use of algorithms to “classify, order, promote , recommend, amplify or similarly modify the delivery or display of information “provided to a user” if the information is directly relevant to the complaint.see our article here explaining how section 230 works)
  • The recently introduced Platform Accountability and Transparency Act require the FTC to issue regulations requiring social media companies to disclose information about the distribution and removal of advertising content and practices, and require such companies to allow researchers to examine the platforms’ impacts on the public, removing Section 230 immunity for platforms that do not meet access requirements.
  • The Copyright Office recently received feedback and hosted an open forum to consider ways to protect publishers from the negative impact of technology platforms exploiting their content. The inquiry is looking at relief like that offered in the Journalism Preservation and Competition Act. He also advanced for comment changes to copyright law to give traditional publishers more control over the use of their content, including narrowing the doctrine of “fair use” or creating federal protection for “hot news,” limiting the release of factual information from breaking stories. When it completes its review, the Copyright Office will make recommendations to Congress on whether to implement some of these changes (see our summary of this procedure here).

Beyond our borders, the technological network revolution may have geopolitical implications. Writing recently in Foreign Affairs, Ian Bremmer, chairman of the Eurasia Group, described the current era as a “technopolar moment”, in which “[i]It’s time to start thinking of the biggest tech companies as states. From Asia to the European Union, governments are acting to address the complex issues arising from the technological revolution. The United States has lagged behind other countries in imposing rules on tech platforms, but in Washington the public policy debate about regulation has gained momentum and promises to be a hot topic in 2022.

Anyone with interests in technology, media or telecommunications should follow technology regulation issues at least to some extent. My law firm (Wilkinson Barker Knauer) regularly produces and shares updates with clients that track ongoing developments in this area. We compile important developments in Congress, the courts, academia, and think tanks, and summarize noteworthy news on this important topic in one easy-to-read place.

Jessica C. Bell