Throwing a new office at an old problem may look like a profoundly Washington response. But two senators and a former FCC chairman took to a stage Tuesday in D.C. to say that it's the only effective response to tech platforms that pivot faster than today’s regulators.
“We need to have a structure that is so flexible that it can deal with the ‘unknown unknowns’ like AI,” said Tom Wheeler. He chaired the FCC in President Obama’s second term and led the passage in 2015 of net-neutrality rules that today’s FCC is now trying to revive after his successor, Ajit Pai, scrapped them all in 2017.
The structure Wheeler has in mind is the Digital Platform Commission proposed in a bill introduced in May by the two senators who joined him at Tuesday morning’s panel at the Brookings Institution: Michael Bennet (D.-Colo.) and Peter Welch (D.-Vt.).
S.1671, the Digital Platform Commission Act of 2023, would create a new office dedicated to monitoring and policing the conduct of social and commercial tech platforms, especially those that it considers to be “systemically important.” Sen. Bennet first introduced this bill in May 2022, after which it suffered the fate of almost all tech-policy bills when it failed to get even a committee vote.
Asked by the panel moderator, New York Times tech-policy reporter Cecilia Kang, about President Biden’s executive order imposing rules on the developers of large AI models, Sen. Bennet credited Biden for making creative use of the Defense Production Act’s authority but said the EO’s limits make the case for his commission.
“We need Congress to legislate so we can have predictable rules of the road,” he said. “I don't think we're going to be able to do that by executive order.”
Wheeler, author of the new book Techlash: Who Makes the Rules in the Digital Gilded Age?, concurred, calling most of the EO “aspirational.” He cited his own experience running the FCC as a reason for new legislation that would allow a more agile approach.
“Running the FCC in the digital area, trying to use a statute written in 1934 when television didn't even exist, is what taught me this lesson,” he said, evoking, presumably unintentionally, a frequent critique of the net-neutrality rules his FCC passed.
The proposed Digital Platform Commission would be able to write and enforce rules about such categories of platform conduct as content moderation, algorithmic recommendation systems, data portability, and their transparency about the above operations. The bill doesn’t say what most of those rules should look like, which makes it much shorter than the European Union’s sprawling, prescriptive Digital Services Act.
But the bill does direct the commission to write an “age-appropriate design code” to protect children on these platforms and set age-verification standards. California Gov. Gavin Newsom (D.) signed a law with similar “age-appropriate” provisions last September; a year later, a federal judge blocked the law, holding that it probably violates the First Amendment by trampling on the rights of adults.
That part of the bill did not come up in Tuesday’s discussion, although all three speakers nodded to the concerns of parents about what social media was doing to their children. Said Wheeler: “We have a mental health epidemic that is raging in this country, especially among young folks.”
The senators also portrayed their bill as a remedy for Section 230 of the Communications Decency Act, the 1996 statute that encourages online forums to police content as they wish by holding them generally not responsible for what their users post even if they do actively moderate that content.
“There's nobody that is there on behalf of the public because we made that decision in Section 230 to let it go,” Sen. Welch said. “A lot of folks who were very strong Section 230 advocates are now saying that there has to be some regulation.”
After Kang asked how confident the two senators could be in this bill going anywhere after so many other proposed tech-policy measures have gone nowhere, they pointed to a bipartisan level of angst over the reach of the largest tech firms.
“What's happening in all of these areas affects you whether you live in a red state or a blue state,” said Welch. “Everyone cares about their kids. Everyone cares about their small businesses getting crushed.”
Saying “we have to acknowledge and recognize our failure to regulate the social media platforms in a way that protects the public interest,” Sen. Bennet predicted that voters would insist that Congress fixes that failure.
“This is one of those things that will get done,” he said. “The public is going to demand it.”
