A new EU law will influence US free speech more than Elon Musk

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Elon Musk reached an agreement on Monday to purchase Twitter after criticizing the platform for failing to reach its free speech potential. If the deal holds, he has promised to take the company private, which means he and those he hires will control what free speech looks like on the site. But Musk’s $44 billion purchase ultimately might not be the biggest news when it comes to free speech on the internet.

On April 23, European lawmakers passed the Digital Services Act (DSA), the European Union’s most recent attempt to rein in big tech firms such as Apple, Google and Meta. The law, which is expected to take effect in 2024, essentially enforces European values regarding free expression, corporate responsibility and fostering a pluralistic society.

If you’re thinking that Americans are not subject to European laws, you’re right. The problem is, the borderless nature of online communication means that when technology firms are pressured to change their services to comply with laws in one part of the world, they often adjust their services on a global scale.

As these firms work to comply with the law, it’s likely that many of the adjustments they make will be global, rather than EU-specific. In short, we’ll all be using a version of Europe’s internet.

We’ve been through this before. Europe’s General Data Protection Regulation (GDPR) went into effect in 2018. The massive law was created to protect EU citizens’ private data from being misused by online firms. It requires that firms provide users more transparency when they collect their data, and requests for approval have trickled into U.S. websites. For example, though they obviously are not part of the EU, West Virginia University, the Louisiana State Parks and Coca-Cola all have GDPR compliance information on their websites.

The GDPR is also the reason that most websites you visit tell you about cookies and many ask you to approve some level of their use. That’s a European law influencing how tech firms manage Americans’ privacy.

If Europe’s massive privacy law made such a dent in how online services treat Americans’ data, what will the Digital Services Act do? It’s difficult to know. Not all of the GDPR’s requirements made it across the Atlantic.

The DSA requires big tech firms to manage illegal and harmful content, as well as misinformation and disinformation. The firms must submit to independent audits to ensure compliance with the law. The DSA also limits the power of large firms’ algorithms — including their ability to steer people toward certain ideas and to target people based on their race, religion, or sexual preference. The EU plans to hire more than 200 employees to enforce the law. Violations can cost large firms up to 6 percent of their global revenue.

Like the GDPR, it’s likely the DSA will lead to substantial improvements in the way information flows in online spaces in the United States. Big tech firms likely will take down more extremist and hate-filled content, in the name of DSA compliance, than they might have in the past. 

The way the law came about, however, should give us pause. European lawmakers have provided much-needed attempts to address substantial problems that big tech firms can cause because U.S. lawmakers have done nothing. EU laws are influencing Americans’ information ecosystem because they fill a massive void in regulation. That means Americans’ ability to communicate ideas may be subject to European sensibilities — the result of a foreign law that probably would be deemed unconstitutional if passed by U.S. lawmakers.

That’s the thing. U.S. lawmakers have failed to address almost any problem caused by big tech firms for at least two reasons: They lack the know-how and will, and the First Amendment would stand in the way of most efforts. Ideally, lawmakers would convene a group of experts in the field — engineers, lawyers and scholars — to provide policy suggestions. Instead, we get congressional hearings, where lawmakers perform for the audience but ultimately demonstrate how unprepared they are to regulate complex, important technology.

Some states have addressed social media firms’ behaviors. Texas and Florida passed laws that would require firms to leave up speakers and content that violate their community guidelines. Both laws were halted in court because they violated the First Amendment. Neither appeared to be a clear-minded attempt to help constituents.

New York lawmakers have proposed a health misinformation law and Washington state officials are looking to limit election misinformation. Already, however, some are warning that both approaches would limit First Amendment rights.

In the absence of U.S. lawmakers’ addressing some of the problems created or exacerbated by big tech firms, Americans increasingly will find themselves interacting in an online world regulated by EU lawmakers.

Jared Schroeder is an associate professor of journalism at Southern Methodist University in Dallas, where his research focuses on free expression and emerging technology.

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