Sen. Mark Warner (D-VA), a frequent critic of big tech companies’ behavior, has been floating a list of 20 options for regulating web platforms. Axios, which published the white paper today, says it was prepared by Warner’s staff and has been “circulated in tech policy circles in recent weeks.” The document includes proposals for three topics: fighting politically oriented misinformation, protecting user privacy, and promoting competition. Many of the options are already being discussed, and some are sweeping and highly controversial, like removing liability protections from web platforms. Others echo intriguing proposals like “information fiduciary” rules, or they import ideas from Europe’s GDPR privacy framework.
Warner’s paper takes a step beyond the social media-focused congressional hearings that have dominated the past year. It urges lawmakers to seriously consider rules that would shape the course of “privacy, competition, and public discourse.” Unsurprisingly, that includes covert propaganda operations on platforms like Facebook, which Warner has accused of not taking misinformation campaigns seriously enough. The paper suggests that Congress could pass laws requiring companies to determine the origins of posts and accounts; publish reports on the prevalence of “inauthentic” accounts; and clearly identify bot accounts, which are sometimes known as a “Blade Runner” law.
These proposals are familiar but sometimes highly controversial
The paper also suggests modifying Section 230 of the Communications Decency Act, which shields companies from liability over users’ posts. Under the proposed version, platforms would be required to take down content if a court determines that it constitutes defamation, an invasion of privacy, or similar material. (This is different from the Republican argument that Section 230 should force platforms to be politically “neutral.” It’s more relevant to cases like whether Yelp should take down defamatory reviews.)
Some proposals are conceptually sweeping: one would designate certain services, like Google Maps, as “essential facilities” so that companies couldn’t use their market dominance to extract preferential terms from smaller companies. Some are more mundane, like funding media literacy programs. And others are addressing problems that seem abstract at this point, like regulations for realistic high-tech “deepfakes” misinformation videos, which haven’t yet proven to be much of a real danger on social media platforms.
One of the more interesting proposals involves designating web platforms as “information fiduciaries,” which would need to follow a code of conduct modeled after rules for law firms or financial institutions. It’s a rule that might have more teeth than, say, just asking users to opt into data collection. Warner’s paper also proposes this, but it acknowledges that many people will simply click through a permissions screen to use a service.
Warner’s paper doesn’t present any of these options as hard recommendations, and it acknowledges that many of them have widely discussed flaws, some of which could cause them to backfire completely. Making social networks responsible for identifying “inauthentic” accounts, for instance, could drive away vulnerable people using pseudonyms or non-legal names. Narrowing the protections from Section 230 could make platforms over-police their content in an attempt to avoid liability.
As Axios notes, there’s one proposal that isn’t on the table: actually breaking up big tech companies. And a Republican-controlled Congress doesn’t seem likely to act on them in the near future; Republicans have talked about regulating tech companies, but Warner’s proposals skew toward Democratic concerns. It’s more plausible that we’d see government agencies adopt some elements of the proposals independently or for some of the proposed rules to pop up as bills in individual state legislatures.