Corrected 10:22 p.m. | President Joe Biden and Republican lawmakers last week launched yet another effort to confront thorny issues relating to Big Tech and social media platforms that have bedeviled previous administrations and Congress, but the path to progress this time around is just as murky.
In two high-profile opening salvos of the 118th Congress, the two sides showed how far apart they are starting. Aside from a glimmer of overlap on protections for minors and the market power of the big tech companies, the two sides aren’t offering much promise of legislation.
Biden used a Jan. 11 op-ed in The Wall Street Journal to call on Congress to pass federal data privacy legislation, especially to protect children, and prevent ads targeting them, modify U.S. law on social media content moderation policies, and change antitrust policy to bring more competition into the tech industry.
House Republicans took a different starting point, saying they wanted to first address what they perceive as social media bias against conservatives aided by pressure from federal officials. Speaker Kevin McCarthy’s office put out a statement the same day saying Biden’s op-ed failed to mention three key Big Tech issues for Republicans: censorship, free speech and bias.
House Republican Reps. James R. Comer, R-Ky., Cathy McMorris Rodgers, R-Wash., and Jim Jordan, R-Ohio, followed up the next day with proposed legislation that would stop federal officials from “using their authority or influence to promote censorship of speech or pressure social media companies to censor speech.”
Tom Romanoff, director of the technology project at the Bipartisan Policy Center, said opening bids by both Democrats and Republicans “is the continuation of the kind of Big Tech agenda.”
The Republican proposal “doesn’t come as a surprise,” he said. “It’s part of their virtue signaling to their caucus.”
Democrats and Republicans agree that content moderation, one of the thorniest Big Tech issues, must change. Section 230 of a 1996 law provides online companies immunity from legal challenges for content created and posted by users, giving the companies freedom to decide what should remain and what should be removed from their platforms.
But the two sides “are talking past each other, citing different use cases” to bolster their arguments for why the law should be changed, Romanoff said.
Democrats want to overhaul content moderation law to prevent what they say is the spread of misinformation and disinformation relating to voting, COVID-19, violence targeting minorities and other social ills.
Republicans say the law must change to ensure that social media companies don’t engage in censorship by removing content posted by conservatives, including content expressing skepticism of COVID-19 vaccines or messages questioning the integrity of U.S. elections.
“We need Big Tech companies to take responsibility for the content they spread and the algorithms they use,” Biden wrote in the Journal. “That’s why I’ve long said we must fundamentally reform Section 230 of the Communications Decency Act, which protects tech companies from legal responsibility for content posted on their sites.”
McCarthy’s office responded that Biden wasn’t addressing the real problem.
“House Republicans will confront Big Tech’s abuses because the truth should not be censored,” McCarthy deputy spokesperson Chad Gilmartin said in a release. “Americans should not be blocked or banned for sharing a link to a news article. But that’s exactly what Big Tech has done, which Biden wants to ignore.”
Gilmartin cited examples alleging the Biden administration’s efforts to silence conservatives online: a poorly crafted panel at the Department of Homeland Security to fight online disinformation that was quickly disbanded; some evidence that the Biden campaign got Twitter to take down posts relating to the president’s son, Hunter Biden, during the 2020 presidential election; and details from internal Twitter documents showing the FBI asking Twitter to take down some posts and authors.
The Comer-Rodgers-Jordan bill release followed the next day. The three lawmakers didn’t clarify which committee would have jurisdiction over the bill, or even whether it would receive a markup. But the three lawmakers are committee chairs, and their seniority suggests a floor vote at some point.
Since the House Oversight and Accountability Committee, chaired by Comer, has yet to be formally constituted, there’s no timeline for marking up the legislation, said a committee aide, who also said the measure hasn’t garnered any Democratic support. Jordan leads the House Judiciary Committee and Rodgers leads Energy and Commerce.
Romanoff said even if the House passes the bill, the Senate isn’t likely to do so, and Biden would probably veto it if it did reach his desk.
Tech industry in the middle
Caught in the middle is the tech industry, which mostly wants to be left alone and allow online users to make their own choices on harms and consequences that come from engaging through social media platforms.
“It’s clear that both sides have an issue with the tech industry,” said Carl Szabo, vice president at the trade group NetChoice. “However, the solutions that President Biden is proposing are designed to harm Republican interests and give the government more control over how we live our lives.”
NetChoice represents several of the biggest social media and tech companies, including Amazon, Google, Meta, TikTok and Yahoo.
Even where Republicans and Democrats appear to have common ground, such as on laws governing content aimed at children and minors, the industry would prefer that parents and families decide what is safe for children. Rodgers has backed proposals to address federal data privacy as well as online protections for children and minors.
In addition to partisan divisions, lawmakers would also have to overcome resistance from the tech sector, a deep-pocketed interest group.
Szabo said the government shouldn’t prescribe any regulations to address children online.
“The notion that the government or somebody sitting in Silicon Valley knows what is age-appropriate for my children is not only offensive, it is frankly unconstitutional for the government to try and tell me and my family how to live our lives on the internet,” he said.
But Romanoff saw in Biden’s op-ed an area where the two sides might find agreement. The president’s call to inject more competition in the tech industry is the first time he has explicitly backed bipartisan proposals in Congress on the topic, Romanoff said.
“The next generation of great American companies shouldn’t be smothered by the dominant incumbents before they have a chance to get off the ground,” Biden wrote in his op-ed, backing legislative action to accomplish that goal.
His comment signaled support for a bill backed by Sens. Amy Klobuchar, D-Minn., and Charles E. Grassley, R-Iowa, and nine others and approved by the Senate Judiciary Committee in early 2022. The bill would prohibit giant companies, such as Apple, Amazon, Facebook and Google, from giving preference to their own products and services over those of their competitors. That bill didn’t get a floor vote.
“We will continue to push to pass this bill into law,” Klobuchar said in a statement after Biden’s op-ed ran.
Romanoff was skeptical that House Republicans would give it much support, parting ways with their Senate colleagues. He thought common ground was more likely on safeguarding children from online and social media ills.
“I feel hopeful that at least the youth protection aspects of [the data privacy bill] has a very strong chance of getting through both houses of Congress,” Romanoff said.
This report has been revised to correctly attribute comments from the office of Speaker Kevin McCarthy.