Regulating the tech giants may finally be within reach

For nearly five years, lawmakers on both sides of the aisle have promised to rein in the power and influence of Big Tech. Increasingly alarmed by the power that giants like Amazon, Apple, Google, Facebook and Twitter wield, they've targeted how these companies harm consumers by allegedly choking competition from smaller players, exploiting personal data for profit and controlling what is shared and consumed online. 

Despite the flurries of congressional hearings that started with Russia's use of social media to interfere in the 2016 election, little has changed so far.  House and Senate members have introduced dozens of bills including a comprehensive federal privacy law, a modernization of antitrust laws and a rethinking of tech companies' sweeping federal liability shield. But to date, none of them has become law.   

The inaction has become a source of frustration.

"It's frankly nothing short of pathetic," Sen. Mark Warner, a Democrat from Virginia, told The Wall Street Journal in November. He warned that "it would be a fairly damning commentary on Congress" if lawmakers don't act soon.

But the latest cycle of congressional outrage hasn't spurred congressional action yet. In October, whistleblower Frances Haugen leaked internal Facebook documents that illustrate how the company puts profits over user safety. Facebook, which rebranded itself as Meta later that month, has said that Haugen mischaracterizes the company's actions.

Haugen, who testified twice in front of Congress in the waning months of 2021, showed through the documents and studies that the company knew its products were harmful, especially to teenage girls. But while politicians from both parties expressed disgust and outrage and promised action, they are still far apart on many details.  

Haugen warned lawmakers that this is what the tech giants hoped would happen.

"Facebook wants you to get caught up in a long, drawn-out debate over the minutiae of different legislative approaches," Haugen told a House Energy and Commerce subcommittee in December. "Please don't fall into that trap. Time is of the essence… You have a once-in-a-generation opportunity to create new rules for our online world."

So will 2022 be any different than the preceding five years? Some observers are cautiously optimistic. 

"There's a narrow window between now and the spring when we start getting into election season that Congress could get something done, particularly around privacy, where there's a lot of bipartisan support," said Samir Jain, policy director for the Center of Democracy and Technology. "But it will require both Congress and the White House prioritizing these issues." 

Here's a look at the state of things in Washington, DC.  

It's all about the kids

If there's one area where legislative movement may be possible in 2022, it would be on protections for kids and teens. Since Haugen's assertions that Instagram parent company Meta knew the platform worsened the mental and physical health of some users, Democrats and Republicans in Congress have promised legislation to protect teens' privacy and to shield them from damaging effects of these apps. 

"Privacy is definitely one area where they could get something done, especially when it comes to protecting privacy for children," Jain said. 

One of the more promising pieces of legislation is an expansion of the 1998 Children's Online Privacy Protection Act, or COPPA, which already has bipartisan support and is backed by children's advocacy groups. The current law places stricter restrictions on the use of data about children under 13 than about older people. It also offers parents the ability to monitor and approve some of the information their children share.

In May, Sen. Ed Markey, a Democrat from Massachusetts, who helped write the 1998 law when he served in the House, and Sen. Bill Cassidy, a Republican from Louisiana, introduced an update to COPPA that would increase the age restriction for data use from 13 to 15. 

The revised law would not just affect change at Meta, but it would also apply to other platforms like Snap's Snapchat and ByteDance's TikTok, which have large teen audiences. 

"Big Tech has a voracious appetite for kids' attention and data, and these companies have no problem prioritizing their own profits over children and teens' right to privacy," Markey said when he introduced the bill. "It's time for Congress to swiftly put in place strict safeguards that stop these powerful platforms from tracking young people at every turn in the online ecosystem."

The bill still has a long way to go. It must pass the Senate and House and be signed by President Joe Biden before it would become law.  It's currently still being considered in committee. 

What about privacy rights for all?

While an updated COPPA could extend existing privacy protections for teens, a more comprehensive federal privacy law for everyone has stalled in Congress. This has happened despite broad bipartisan agreement over the need for federal legislation, as well as buy-in from the tech industry. 

As states like California, Colorado and Virginia have pushed through their own privacy legislation and more states say they plan to do the same, companies like Amazon and Meta say they're open to federal legislation to avoid following a patchwork of state laws. 

Still, federal lawmakers have been unable to agree on the details, such as whether federal law should preempt state law and whether individuals should be allowed to sue over privacy violations. Cameron Kerry, a general counsel and acting secretary of the US Department of Commerce under President Barack Obama and a fellow at the Brooking Institution, has followed privacy legislation closely. He said he's optimistic that the revelations from the Facebook documents that Haugen leaked could be the spark needed to get privacy legislation passed this year. 

"We have never seen passage of a broad privacy law as close as it is now, and no other issue targeting the major tech platforms is anywhere near as ripe for action," he said in a Brookings blog post in November. He added that it's time for Congress to "finish the job of enacting a privacy law that began with its first Facebook hearings in 2018."

Section 230 reform and regulating algorithms

It's a similar story for Section 230 of the 1996 Communications Decency Act, which shields platforms like Facebook, Instagram and YouTube from lawsuits over the content that their users post. Democrats and Republicans both say they want to make changes, but they're split along party lines on how to do it. Democrats want to focus on holding social media platforms accountable for moderating hate speech and disinformation, while Republicans have accused the companies of censoring conservative voices.

The result has been lots of hearings, but no legislative wins. 

The most recent bills on Section 230 reform take different tacks. Instead of focusing on content moderation, they look at regulating the ranking algorithms designed to maximize engagement on these platforms. 

Some lawmakers have proposed carveouts of the Section 230 protections for when algorithms amplify certain kinds of content. For instance, a bill from Democrat Reps. Tom Malinowski of New Jersey and Anna Eshoo of California removes Section 230 protections when algorithms boost content related to civil rights violations or international terrorism.  Sen. Amy Klobuchar, a Democrat from Minnesota, has introduced a bill that removes the liability shield when platforms promote medical misinformation during a public health emergency, such as the coronavirus pandemic. 

"Earlier this year, I called on Facebook and Twitter to remove accounts that are responsible for producing the majority of misinformation about the coronavirus," Klobuchar said in July when her bill was introduced. "But we need a long-term solution. This legislation will hold online platforms accountable for the spread of health-related misinformation."

Other legislation, such as a bill from House Democrats led by Rep. Frank Pallone of New Jersey would make internet platforms liable when they "knowingly or recklessly" use algorithms to recommend content that leads to physical or "severe emotional" harm. 

Republicans have laid out their own algorithm-focused Section 230 reforms. Sen. Marco Rubio of Florida introduced a bill that would remove tech companies' liability shield when they either promote or "censor" certain political viewpoints. 

The idea is that putting limits on the algorithms could force tech companies to be more careful about the content they amplify and could force the companies to change how the algorithms work. Haugen emphasized this point in her testimony. 

"If we reformed 230 to make Facebook responsible for the consequences of their intentional ranking decisions, I think they would get rid of engagement-based ranking," Haugen told a Senate subcommittee in October. 

But critics say this approach could have unintended consequences, something Haugen also warned of. A 2018 law signed by President Donald Trump that provided such a Section 230 carveout aimed at cracking down on sex traffickers online, ended up pushing such activity to more fringe sites where marginalized and vulnerable groups were put at greater risk of harm. 

Civil rights and human rights organizations have cautioned about further targeted reforms to Section 230. 

"It's irresponsible and unconscionable for lawmakers to rush toward further changes to Section 230 while actively ignoring human rights experts and the communities that were most impacted by the last major change to Section 230," said Evan Greer, director of the grassroots group Fight for the Future. "The last misguided legislation that changed Section 230 got people killed. Congress needs to do its due diligence and legislate responsibly."

Don't forget about antitrust 

Like privacy legislation and Section 230 reform, politicians in both parties say they want antitrust reforms to rein in the power and dominance of the tech giants. But a year after the House Judiciary subcommittee on antitrust published its 450-page report concluding that Amazon, Apple, Google and Facebook use their monopoly power to stifle competition, legislation has stalled in the House. The House Judiciary Committee in June approved six bills but has yet to schedule a floor vote. 

Meanwhile, efforts in the Senate are picking up steam. In October, a bipartisan group of senators, led by Klobuchar and Sen. Chuck Grassley, a Republican from Iowa, introduced the American Innovation and Choice Online Act. A companion bill to one of the House bills approved in June, it would make it illegal for Amazon's marketplace or Google's search engine to favor their own products and services at the expense of other businesses that rely on the platforms.

If passed and signed into law, the legislation would mark the most meaningful change to antitrust law in decades. It would force changes in how the companies do business and how their products operate, and it could even break up companies.

The tech platforms oppose these measures and argue that such laws will actually mean fewer choices for consumers and higher prices for products. While much of the groundwork has been laid and there is some bipartisan support for these bills, there is still a very long way to go, say experts like Jain. 

"There's definitely an avenue for reaching agreement on many of these issues, like privacy and antitrust," he said. "But it's really about whether these issues are a priority for both Congress and the administration. That's really what it will take to get this done."