Saturday’s agreement on the Digital Services Act completes a package of two bills, the other half of which, the Digital Markets Act, was solidified in late March. Now both sides are awaiting votes for final approval, but these are considered a formality. The rules read like a polished collection of the myriad ideas that the chosen ones came up with here and then did nothing – for better or for worse. DSA and DMA are, unsurprisingly, notably European: some of the restrictions could help create safer platforms and fairer markets, while others could hinder innovation or stifle expression. Certainly, the demands they will entail will exceed what the US Constitution would allow.
The DSA’s overall approach to how platforms moderate content makes sense. Rather than requiring sites to preemptively filter malicious content, the law requires them to remove infringing content when they become aware of it. Rather than defining new categories of prohibited speech, the law allows member countries to decide for themselves what is legal and what is not. Special attention is paid to targeted advertising. Because more speech tends to be illegal in Europe than in the US, however, many perfectly legal posts here will be subject to deletion there. A recently added provision requiring strategies to counter disinformation during crises is particularly questionable.
Some aspects of the legislation translate more easily into the American tradition: services must explain and provide appeal procedures for withdrawals; big sites will have to make their recommendation algorithms more transparent. Either way, however, the new compliance regime may well prove too cumbersome in scope and precision. Likewise, the competition-driven DMA, which governs the behavior of so-called gatekeepers, could threaten the flexibility that allows companies to grow and change. Like its sister law, the proposal takes smart ideas a bit too far – requiring, for example, that services subject to its restrictions never pre-install software on devices. Consumers probably wouldn’t rather have to download a flashlight to their iPhone than have the tool ready to activate.
On Capitol Hill, lawmakers remain mired in conversations about Section 230 reform that prioritize political point scoring over thoughtful changes to how platforms’ systems are designed. Antitrust reform has made progress, but the DMA would require companies to do everything the proposed bills would mandate and more. A federal privacy law has become something of a punch after years of talk – while the EU passed its version, known by the acronym GDPR, five years ago. US tech companies are leading the way around the world, but US law has barely gotten started. Congress needs to start moving if it wants to shape even a small part of the future.