We are two weeks away from the 2022 midterm elections and this year’s elections have advanced state leadership on a number of issues. States have become the new battleground for policy making and influence, especially when it comes to content moderation. But before we preview how the content moderation debate might unfold in 2023, we must first review past and ongoing trends.
State lawmakers launched their own initiatives to regulate online content moderation around 2018. Since 2021, states have introduced more than 250 bills to regulate content on digital service platforms, although often with the intent to target only major technology companies. Many states are considering or have passed content moderation legislation. However, much of this legislation may conflict with federal law, including Section 230 of the Communications Decency Act which, like our resource page explains, is an integral part of the function of the Internet.
Many states are moving to one-party rule in this election cycle, so state legislation will be much easier to pass. Over the past year, lawmakers have pursued several types of content moderation measures (covered more deeply in the CCIA Content moderation landscape), the most problematic of which often center around perceived “censorship”, the creation of an oversight body, requirements for disclosure and auditing or testing of algorithms, increased removal of content, and resolutions calling for Congress to amend or repeal Section 230, among other goals. . Some states to be aware of are California, District of Columbia, Florida, Minnesota, New York, Ohio, Texas, and Wisconsin.
California is a key battleground state in this debate because of the number of proposals that have been put forward and the influence they have on other states that are following suit. One of California’s most notable bills to consider is AB 587, which requires digital services to disclose confidential information regarding internal practices. The passing of legislation in California has encouraged states like New York to pass similar legislation like that in New York. SB 9594 and SB 9563replicas of those in California AB 587 and AB 2273 respectively.
Looking to 2023, where control of Congress will be split between Republicans and Democrats, we expect the GOP-led House of Representatives to continue with vociferous hearings and legislative vehicles targeting Section 230 and alleged complaints of ” censorship”. Democrats have also made content moderation a priority, but parties disagree on what should be done about it and so carefully negotiated federal legislation on Section 230 is unlikely to become law. .
While we’ll likely see a stalemate in DC on content moderation, due to mid-terms, more states have moved to one-party rule, making that the focus of this debate. Additionally, while we are likely to see more state proposals on content moderation and digital platforms in 2023, the proposals themselves have and will continue to face many challenges, including challenges legal as to their constitutionality. The legal costs of these bills, common carrier regulations, hardship provisions, private rights of action, lack of evidence-based policymaking, and the patchwork of regulations that emerge from these government efforts. government could very well prevent American companies from competing and innovating at home and abroad. . DisCo has already discussed the high cost state-by-state content moderation.
Finally, while many states move forward with their content moderation proposals, other states’ bills, like Florida’s SB 7072 (which DisCo previously discussed) and Texas’ HB 20, are the subject of rigorous litigation. Many of these emerging bills that are just following in the footsteps of others could also end up in court. Any proposed legislation must be carefully considered or it could lead to unnecessary litigation or even harm both competition and consumers by disrupting reliable digital services.
Learn more about the content moderation landscape here.
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