A New Roadmap for Reining in Social Media Companies Is Gaining Steam

From a Washington Post story by Cristiano Lima headlined “A new roadmap for reining in social media companies is gaining steam”:

For years, U.S. policymakers have been railing against social media companies for allegedly stoking divisions and facilitating the spread of noxious content on their sites, with little to show for it beyond distant threats of regulation.

These efforts have largely taken a single form: proposals to roll back the protections that shield tech companies from lawsuits over their users’ posts, known as Section 230.

But there are signs of growing momentum for a different approach, focused instead on channeling regulators’ consumer protection powers.

It’s a strategy that has shaped a slew of recent proposals aimed at cracking down on platforms that mislead users about their practices and policies, or that fail to be sufficiently transparent about their products.

On Tuesday, three House Democrats unveiled legislation that would create a new digital safety bureau at the Federal Trade Commission tasked with issuing transparency requirements and guidance on safety features to digital platforms.

Rep. Sean Casten (D-Ill.) cast the proposal in a statement as an effort to “finally bring social media platforms’ broken promises and black box practices to light.”  Announcing the bill, the offices leading the charge likened imposing new regulations on online platforms to crafting new “seat belt” or “speed bump” safety standards.

That approach resonates with a separate proposal led by the leaders of the Senate’s consumer protection panel that would create new children’s safety requirements for tech companies, enforced by state attorneys general and federal regulators at the FTC….

While lawmakers are pushing to give regulators more tools to crack down on these supposed consumer protection harms, some state officials and advocates are making the case that there’s more to be done with the laws already on the books.

D.C. Attorney General Karl Racine highlighted an advocacy group’s lawsuit that accused Facebook of violating D.C. consumer protection laws by making misrepresentations about how effective it is in cracking down on hate speech, as we first reported in The Technology 202.

Facebook whistleblower Frances Haugen’s complaints to federal regulators about the tech giant have largely focused on allegations it misled the public and investors about its policies. While those were filed under Securities and Exchange Commission standards, the legal argument resonates with common consumer protection principles that companies shouldn’t use unfair or deceptive practices to mislead their customers.

New York University adjunct law professor Paul Barrett argued that expanding regulators’ powers to crack down on consumer protection harms on social media could offer a more comprehensive solution than revamping Section 230.

“Congress would be well-advised to think about this in a more fundamental way, and ask the question: ‘Does it make sense for the social media industry to go without the kind of oversight that almost all other industries are subjected to?’ ” said Barrett, who serves as deputy director of the NYU Stern Center for Business and Human Rights.

In a new white paper released Wednesday, Barrett and former Stern Center fellow Lily Warnke make the case that boosting those powers would help “reduce the level of hate speech, health misinformation, incitement to political violence, and other forms of harmful content spread by social media platforms.”

The paper suggests Congress should pass legislation to make clear that regulators have the tools to require greater transparency and accountability from tech platforms, including ensuring that their content moderation systems “procedurally deliver on promises made to users about platform rules and enforcement practices.”

Barrett argued this type of approach shows a “deep-seated respect for the First Amendment,” which means it could help steer clear of fraught disputes about speech.

But proposals to boost regulators’ consumer protection powers still face major political hurdles. While some have bipartisan backing, others have only limited Democratic support.

Efforts to expand the FTC’s enforcement authority to levy fines and punish companies have faced steady pushback from business groups like the U.S. Chamber of Commerce, as well as moderate Republicans who worry about regulatory overreach. Barrett said he has no delusions about the likelihood of the proposals advancing anytime soon.

“Any attempt to pass any kind of broad legislation in this area is going to face a very uphill fight, there’s no doubt about that, and if you were a betting person I don’t think you’d bet a lot of money that the broader FTC-oriented legislation is going to get enacted in 2022,” he told me.

Cristiano Lima is a business reporter and author of The Washington Post’s Technology 202 newsletter, focusing on the intersection of tech, politics and policy. He previously served as a senior web producer, breaking news reporter and tech policy reporter for Politico.

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