Hot Topic for 2022: Tech Regulation

Jonathan Cohen

By: Jonathan Cohen,
Wilkinson Barker Knauer LLP

My law firm partner, Jonathan Cohen, has been closely monitoring the developments in the regulation of social media and other big tech platforms by the current administration.  He offers these thoughts on likely areas of legislative and regulatory action in this area in the coming year – David Oxenford

Many nights, the last thing I do before falling asleep is put down my phone, and the first thing I do upon waking is pick it up.  I know I’m not alone in this.  And how many times have we made an online purchase from bed?  Internet-enabled digital technologies seem to have transformed life for most Americans, changing how 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 major network revolution,” after the invention of movable-type printing and the innovations in travel and communications brought about by railroads and the telegraph.  This new revolution is rapidly changing our information ecosystem.

Beyond the commercial opportunities and challenges presented for tech, media and telecom companies, as well as content creators, the societal impact of this third major network revolution is fascinating and wide-ranging, but also potentially troubling.  Illustrating the power that tech platforms exert over us, Taylor Lorenz of The New York Times recently reported on a conversation she’d had with a 10-year-old boy who was disappointed that no photos were available when he Googled himself.  The boy felt that he wasn’t a real person until his photo came up in a Google search.  Leaving aside the numerous sociological implications of the tech revolution, the tech sector is under scrutiny as never before.  Its business model of tracking users’ online actions and using the data to sell targeted advertising and feed algorithmic amplification has been described by Harvard professor emerita Shoshana Zuboff as “surveillance capitalism.”  Others call it the “attention economy.”

All this has led to a new wave of proposals to regulate technology.  Privacy and consumer protection issues abound, not to mention concerns over recent impacts on institutional and democratic norms.  Congress is considering bipartisan antitrust legislation while the Biden Administration and State Attorneys General are pursuing lawsuits to rein in the market power of Big Tech.  Numerous bills have been introduced in Congress to reform the liability shield afforded by Section 230 of the Communications Decency Act, which was enacted in 1996 when the world wide web was just gaining traction.  And dozens of other bills are under consideration that, if enacted, would have wide-ranging implications for tech, media and telecom players.  To list just a few:

• The Journalism Competition and Preservation Act of 2021 (R. 1735; S. 673) would enable print, broadcast or digital news companies to collectively negotiate with online content distributors (see our article here when this bill was introduced.)
• The Preserving Political Speech Online Act (2338) would require the FCC to initiate a rulemaking proceeding to require any online platform or third-party advertiser that displays, hosts, or otherwise allows the advertisement of a legally qualified candidate in an election for federal office to abide by “rules of fair access and equal opportunity.”
• The American Innovation and Choice Online Act (2992) would prohibit large tech platforms from “unfairly” self-preferencing products or services, “unfairly” limiting another user’s ability to compete on the platform, or discriminating in the application or enforcement of terms of service on the platform in a way that may harm competition.
• The Protecting Americans from Dangerous Algorithms Act (R. 2154; S. 3029) Would amend section 230(c) of the Communications Act of 1934 to remove immunity (with some exceptions) for large providers of interactive computer services for using algorithms to “rank, order, promote, recommend, amplify, or similarly alter the delivery or display of information” provided to a user “if the information is directly relevant to the claim.” (See our article here explaining how Section 230 works)
• The recently introduced Platform Accountability and Transparency Act would cause the FTC to issue regulations requiring social media companies to disclose information about the dissemination and removal of content and advertising practices, and would require these companies to allow researchers to examine platforms’ impacts on the public, removing Section 230 immunity for platforms that do not meet access requirements.
• The Copyright Office recently received comments and held an open forum to consider ways to protect publishers from the negative impact of the exploitation of their content by tech platforms. The inquiry is looking at relief like that proposed in the Journalism Competition and Preservation Act.  It also advanced for comment changes to copyright law to give traditional publishers more control of the use of their content, including narrowing of the “fair use” doctrine or the creation of federal protection for “hot news,” limiting the distribution of factual information from breaking stories.  When it finishes its review, the Copyright Office will make recommendations to Congress about possible implementation of some of these changes (see our summary of this proceeding here.)

Beyond our borders, the tech network revolution may have geopolitical implications.  Writing recently in Foreign Affairs, Ian Bremmer, the President of the Eurasia Group, described the current era as a “technopolar moment,” in which “[i]t is time to start thinking of the biggest technology companies as similar to states.”  From Asia to the European Union, governments are taking action to respond to the complex issues that arise from the tech revolution.  The United States has lagged behind other countries in imposing rules on tech platforms, but in Washington, the public policy discussion over regulation has been gaining steam and promises to be a hot topic in 2022.

Anyone with interests in the tech, media or telecom spaces should be following tech regulation issues at least to some degree.  My law firm (Wilkinson Barker Knauer) regularly produces and shares with clients updates that track ongoing developments in this area.  We compile significant developments arising in Congress, the courts, academia and think tanks, and summarize noteworthy news items on this important topic in one easy-to-read place.  If you would like to receive these updates, please contact me at joncohen@wbklaw.com.