2022: The Regulatory Road Ahead
What I’m watching in the next six months
January sure isn’t messing around is it? Not sure about the rest of you but it’s been practically non-stop for me since January 3. I love being busy but man is it hard to keep up with everything.
To that effect, I wanted to share this week how I’m looking at the regulatory road ahead for tech policy in the United States, UK, and Europe. This is just my analysis of where I think different things are, but I could be wrong. Please send feedback if there’s anything I need to correct or add.
But before I do that I did want to highlight two reports that came out this week. The first is the Edelman Trust Barometer. I look forward to this every January. It’s full of a wealth of knowledge from around the world about where people have the most trust. It’s not a pretty picture in the United States and I continue to find it fascinating how people are really turning to businesses and business leaders for direction. It’s a fine line as people want them to lead on the issues but stay out of politics. I find that to be nearly impossible given pretty much any issue is political these days, but it’s no longer something leaders can hide from. I also find it interesting how people trust technology companies but definitely do not trust social media companies. I’d love to explore that more.
The second is a new installment of the Pandemic to Prosperity report from the National Conference on Citizenship. This is an organization I joined the board of at the end of 2020 and am actually acting as interim CEO of right now. This report pulls from a lot of great data to look at the impacts of COVID on the economy, climate, mental health, health care, employment/learning, access to broadband/information, data quality, and democracy. We’re looking for someone to become the permanent CEO so if you are interested let me know or apply here.
Ok, onto the regulatory landscape. It’s practically a given that potential regulation of tech companies will remain a dominant issue in 2022 around the world - both in terms of actual regulation and as a key campaign issue for candidates up for election. I feel like we’re in this period of the new year where everyone is like, “Well, maybe Congress will do something this year.” But, in reality, it’s unlikely. However, it is important to keep an eye on how regulation in the states and other countries can impact what is happening in Congress. The more fragmented the regulations are the more we’ll likely see platforms just shut down efforts/products altogether, change their products for everyone based on one region’s laws (ie, like how Facebook instituted GDPR across all its users), or entrench only those platforms who have the resources to comply.
United States: Any movement on tech regulation will take place early in 2022 before people’s attention turns to the midterms. Should the Republicans retake, the House in 2023 expect the debate to remain top of mind but a shift in focus to censorship. Movement is also potentially happening in the states on tech, though they are unlikely to have much impact at the Federal level this year. Bills/topics currently getting the most attention at the national level are:
Competition/antitrust: Axios is reporting that lawmakers want to take portions of the House antitrust bills and get them passed in the first part of the year. The Senate is marking up on Thursday, January 20th on the American Innovation and Choice Online Act. I would expect to see additional debate and opportunities for BPC to engage as bills pass through each chamber.
Transparency: The Platform Accountability and Transparency Act (PATA) introduced late last year has some momentum given the support by researchers and others. I would expect the Senate to conduct hearings on this and be amongst the most likely regulation to be passed before the midterms.
Child Safety: Given the revelations from the Haugen documents and focus from Senators on them, there is a chance that there are more hearings and activity around regulation here. While something could get passed, I’m unsure if it’ll be prioritized over other tech regulations. I could see something added to another bill as an amendment in this area.
January 6th: The House committee subpoenaed the tech companies for documents related to the riot at the capitol. I think the companies asked for these subpoenas to cover any legal risks they could be under for handing information over. Regardless, this topic will remain in the news with an interim report expected in the summer and a final one in the Fall - just in time for the election. Side note: In 2020, Facebook worked with external researchers to study the platform’s impact on the election. After January 6th, they extended the data collection timeline and postponed the release of the work from summer 2021 to early 2022.
Privacy: While the need for privacy legislation pops up now and then, it is unlikely that this will be prioritized over other legislation this year.
Content Moderation/Section 230: Any regulations proposed on Section 230 or content moderation are mainly messaging bills and have little chance of turning into actual regulation. This is because not only is this the area that Republicans and Democrats disagree the most on how to solve the problem, but they will most certainly run up against the First Amendment.
Political Advertising: Little to no attention is paid to regulation for online political and issue advertising despite this being a more prominent focus of the bills in the UK and EU. Although, some Democrats did introduce a bill Tuesday to ban targeted advertising. I highly doubt this goes anywhere and in my snark on Twitter last night I found it ironic that this bill was introduced but these exact tools are what is being used to highlight the infrastructure bill at a hyperlocal level. Even if regulation is unlikely in the US, this is the main area where I could see companies implementing rules that come from complying with European regulation in the United States.
Cross-Check: While the topic of Facebook’s cross-check feature isn’t focused on by Congress, it is one that journalists, civil society, and others are paying attention to. The Oversight Board’s deadline for public comments just passed, and an advisory opinion is expected early this year. Once the Board issues that, Facebook will have 30 days to respond.
Elections: While there isn’t any regulation at the federal level specific to social media companies and elections, we can expect this to become a big topic for legislators the closer we get to the midterms. Debates around deplatforming, authoritative election information, fraud, and content/product policies will dominate more while candidates also make regulation of tech on the topics above a part of their platforms. The conversation has also already started about 2024, with the RNC saying they will recommend candidates not work with the Presidential Debate Commission. Expect late 2022 and early 2023 to have a significant focus on not only if Trump runs or not but if Facebook will allow him back on the platform.
United Kingdom: The UK is poised to pass its online safety bill at the beginning of this year. At the moment, a draft bill has been released for feedback and comment. The Joint Committee expects to present a revised bill to parliament in March 2022. The UK will likely be the first to pass its legislation out of the US, UK, and EU.
Europe: For years, the European Union has been looking to regulate tech companies first through its voluntary Code of Practice on Disinformation and then through the Digital Services Act and Digital Marketing Act. France just took over the presidency of the EU Council and would like to get the DSA and DMA passed before their elections in April; however, other member states have balked at that timeline. Still, these will likely be adopted no later than July 2022. The Code of Practice on disinformation is also going through a refresh with numerous new signatories added. They hope to have final signoff on it by the signatories by late March.
No doubt this is a lot and I expect us to see a flurry of Senate and House hearings in the next few months as members try to pin companies down before heading home to campaign. Regardless of if anything passes, these next six months are going to push the regulatory landscape forward quite a bit.
To help me keep track of this all I created a calendar for myself and figured I’d share it here too. These are the events I’m tracking so far this year:
Topics to keep an eye on that have a general timeframe of the first half of the year:
EU Passage of DSA and DMA
Facebook 2020 election research
Oversight Board opinion on cross-check
Senate & House hearings, markups, and potential votes
February to March: State elections in Uttar Pradesh, India
March: UK Online Safety Bill
March: EU Signatories Finalize Code of Practice on Disinformation
March 9: South Korea elections
March 11 - 20: SXSW, Austin, Texas
March 19: Timor-Leste elections
March 27: Hong Kong & Lebanon Elections
April: The Gambia elections
April 3: Hungary elections
April 10 and 24: France elections
May 3: Ohio Primary (Open Senate race)
May 9: Philippines elections
May 17: North Carolina and Pennsylvania Primaries (Open Senate races)
May 21 (On or before): Australian elections
May 23 (tentative): World Economic Forum, Davos
May 24: Alabama and Georgia Primaries (AL open Senate race, GA Warnock defending seat)
May 29: Colombia elections
June 6-10: RightsCon, Online
June 9 - 10: Copenhagen Democracy Summit, Copenhagen, Denmark
June 25 - July 1: Aspen Ideas Festival, Aspen, Colorado
June 14: Nevada Primary (Cortez Masto defending Senate seat)
August: Angola elections
August 2: Arizona and Missouri Primaries (AZ Kelly defending Senate seat, MO open Senate race)
August 9: Wisconsin Primary (Will Ron Johnson run?)
August 9: Kenya elections
September 11: Sweden elections
September 13: New Hampshire Primary (Hassan defending Senate seat)
October 2 and 30: Brazil elections
November 8: United States Midterms
Events to keep an eye on but nothing scheduled:
What I’m Reading
New York Times: RNC Signals a Pullout From Presidential Debates
Rest of World: China steps up efforts to ban deepfakes. Will it work?
Rest of World: How Twitter rolled over to get unblocked in Nigeria
Harvard Kennedy School: Research note: Fighting misinformation or fighting for information?
Erick Erickson: It's Only Sensical For the Nonsense