Saturday’s agreement on the Digital Services Act completes a two-bill package whose other half, the Digital Markets Act, was solidified in late March. Now, both parts await votes for final approval, but those are considered a formality. The rules read like a refined collection of the myriad ideas elected officials here have proposed and then done nothing about — for better or for worse. The DSA and DMA are, no surprise, notably European: Some of the restrictions could help create safer platforms and fairer markets, while others might stymie innovation or quell expression. Certainly, the requirements they will result in will exceed what the U.S. Constitution would permit.
The DSA’s overall approach to the way platforms moderate content is sensible. Rather than mandate that sites preemptively screen for malign content, the law asks them to take down violating material when they learn about it. Rather than outline new categories of impermissible speech, the law allows member countries to decide for themselves what’s legal and what’s not. Targeted advertising receives special attention. Because more speech tends to be illegal in Europe than the United States, however, plenty of posts that are perfectly legal here will be subject to removal there. A recently added provision requiring strategies to counter misinformation during crises is particularly questionable.
Some aspects of the legislation translate more easily into the U.S. tradition: Services must explain and provide appeals processes for takedowns; large sites will have to make their recommendation algorithms more transparent. In every case, however, the new compliance regime might well prove too burdensome in its reach and precision. Similarly, the competition-focused DMA, which governs the behavior of so-called gatekeeper firms, could threaten the flexibility that allows companies to grow and change. Like its sister law, the proposal takes smart ideas just a little too far — requiring, for instance, that services subject to its strictures never pre-install software on devices. Consumers probably don’t prefer having to download a flashlight on their iPhones to having the tool right there ready to be flicked on.
On Capitol Hill, legislators remain mired in conversations about Section 230 reform that prioritize scoring political points rather than thoughtful alterations to the way platforms’ systems are designed. Antitrust reform has achieved some progress, but the DMA would force companies to do everything the bills being considered would mandate and more. A federal privacy law has become something of a punchline after years of talk — while the E.U. passed its version, known by the acronym GDPR, five years ago. U.S. technology companies lead the way around the world, but U.S. law has barely gotten off the starting blocks. Congress must start moving if it wants to shape even a small part of the future.