Congress Faces Hurdles in Regulating Online Platforms

Free-speech concerns, self-regulation by Silicon Valley, and wariness over campaign finance reform may derail legislation aimed at holding social-media platforms accountable for foreign meddling.

AP Photo/Mark Lennihan
Oct. 31, 2017, 8 p.m.

The congressional hearings this week with Facebook, Google, and Twitter executives over their handling of Russian disinformation efforts during last year’s election are being billed in some corners as Silicon Valley’s moment of reckoning—the point when, after years of benign neglect, the country’s tech giants finally succumb to federal regulation.

But as lawmakers pound the table over the tech platforms’ alleged malfeasance, Congress’s ability to enact meaningful laws targeting those firms is far from assured. Even after Monday’s revelation that as many as 126 million Facebook users were exposed to divisive political posts created by a Kremlin-backed content farm, there are several hurdles to passing even the most basic legislation cracking down on the platforms.

It’s not just the power of Silicon Valley’s deep pockets. Experts say there are several other issues capable of derailing passage of the Honest Ads Act, a recently introduced bipartisan bill mandating increased transparency for digital ads. Those include First Amendment worries, Silicon Valley’s own self-regulatory efforts, and a hesitance on Capitol Hill to embrace campaign finance reform. And to truly prevent foreign election interference online, some experts say much tougher legislation than the Honest Ads Act will be needed.

“At this point I’d bet against anything passing,” said Rebecca Tushnet, a law professor at Harvard University who specializes in the First Amendment.

The most obvious roadblock to regulating Silicon Valley’s advertising activity is the vast amounts of cash that the companies have showered on lawmakers over the years. But money hasn’t stopped Congress from aggressively targeting tech platforms on other issues. Several experts pointed out the trajectory of the Stop Enabling Sex Traffickers Act, which was introduced this year. While the bill is despised by Silicon Valley for the stringent liability requirements that it places on tech companies, it has so far sailed through the committee process in both chambers.

Other issues are likely more salient, starting with free-speech concerns. The Honest Ads Act would require tech platforms such as Facebook and Twitter to place disclaimers on all political and issue ads, and to maintain records of any individuals or organizations who purchase more than $500 in ads every year. But Tushnet said that legislation may run afoul of First Amendment protections.

“I think [the Honest Ads Act] is one of the few regulatory paths that is open, but even that would probably face a First Amendment challenge, because there are people who want to retain the right to make political claims anonymously,” Tushnet said. “And the Supreme Court might well favor them.”

Berin Szoka, president of the libertarian think-tank TechFreedom, also believes the bill raises First Amendment issues, including “vagueness” over how carefully the platforms will be required to scrutinize online content. He believes that problem will—or at least should—cause lawmakers to think twice before rushing to pass the Honest Ads Act. “The No. 1 reason laws are struck down is that they’re deemed void for vagueness,” Szoka said.

Szoka said his group has spoken with the bill’s congressional backers about these concerns. “The response we got from them was something like, ‘Yeah, we hear you, but we’re just trying to start a conversation. We want something out there,”’ Szoka said. “I took that to mean that even the bill’s sponsors don’t expect this to take off quickly.”

A push by Facebook and Twitter to get out ahead of federal law may also take the wind out of regulators’ sails. In the last month, both platforms have rolled out initiatives aimed at enhancing transparency for political ads. Some experts say those initiatives should be given a chance to work.

“Prior to Facebook and Twitter’s recent transparency moves, I would’ve thought the odds for passage [for the Honest Ads Act] were higher,” said Eric Goldman, the codirector of the High Tech Law Institute at the Santa Clara University School of Law. “Twitter and Facebook have offered up a remarkable degree of insight into the ads that they’re running. Personally I’d like to see how that goes, and [the] insights we can derive from it, before coming out with heavy-handed legislation.”

Szoka believes that may have been the primary intent of the bill’s backers all along. “When they say they want to start a conversation, what they mean in large part is they want to pressure companies to solve their problems for them,” he said.

Lawmakers also harness the sweeping power of Silicon Valley’s tech platforms for their own political campaigns, and some may be less than keen to regulate that arena. “There are a lot of people who, politically, don’t want campaign finance reform to be touched,” said Tushnet. “There are a lot of people who don’t benefit from increased transparency.”

Though the Honest Ads Act may already face a tough path to passage, its sponsors have frequently called it the “light-touch” approach to regulating Silicon Valley. In a hearing Tuesday before the Senate Judiciary Subcommittee on Crime and Terrorism featuring officials from Facebook, Google, and Twitter, lawmakers asked few questions about the bill or how it would affect the tech industry. But several senators questioned the executives about their algorithms and how they target user populations. Yochai Benkler, the codirector of Harvard University’s Berkman Klein Center for Internet and Society, said Congress should move beyond content and advertisement transparency and directly target the platforms’ proprietary algorithms.

“Essentially, we’ve reached the point where there are enormous externalities—on the political system, on the economic system—created by the data collection and manipulation practices of these firms,” said Benkler. “We need access to the data infrastructure.”

But given the hurdles already facing the Honest Ads Act, Benkler admitted that tougher legislation is “a much harder lift, and one that’s much less likely to actually happen.” The battle over access to that data infrastructure, he argues, is likely to go on for decades.

“I think Honest Ads is a very small first lift relative to the overall [lift] that’s necessary,” said Benkler. “And it will probably be as big and long-term of a regulatory battle as competition in broadband and net neutrality have been for the last 20 years.”

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