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What the US could take from Europe’s new content rules

Protocol Policy

Hello, and welcome to Protocol Policy! While we all wait to find out whether the fates of Twitter and Elon Musk will be linked for all time, I want to dig into the new way that Europe is poised to end the free-wheeling days of Big Tech, and what it might mean for the U.S. Plus, the Commerce Department is sniffing around competition in the app market, and the worldwide concern with dark patterns could have big ramifications for all our many subscriptions.

DSA in the USA

The EU’s recent agreement to combat harmful content online with the Digital Services Act is — as I wrote about the competition-focused Digital Markets Act last month — a really big deal that resets the worldwide regulatory stage. But what the U.S. might take from it could focus more on tech giants’ ad-supported, algorithmically pushy business models than the content they push.

At its heart, the DSA is supposed to prompt platforms like Meta, Google and Twitter to find and remove illegal and harmful content faster.

  • That’s something Congress would theoretically love to get done, but between First Amendment free speech protections and lawmakers’ complete inability to decide how they want to tweak Section 230, it’s not going to happen.
  • Of course, the political left and right also can’t agree on what type of content there should be less of — and there are legitimate worries about what kinds of legal or harmless speech might get removed if platforms have to amp up how they police their services to stay in the good graces of a new law.

Instead, the U.S. could take inspiration from the DSA’s prohibitions on targeting ads to sensitive categories, including its ban on targeting minors.

  • After all, kids are perhaps the most bipartisan issue: so much so that collecting data on kids under 13 without parental permission has been forbidden for decades.
  • Lawmakers also were already trying to move forward on kids’ and teens’ issues when President Biden called to make the young’uns our first tech priority.
  • And if you squint, the emphasis on targeting ads to all kinds of sensitive categories — the DSA reportedly includes sex, race and religion — lines up with the scrutiny that former President Obama has belatedly begun to say we should bring to online ads.

The DSA goes beyond ad targeting, though.

  • The law would also bring transparency obligations to content- and product-recommendation algorithms and open them up to researchers.
  • This is the sort of idea that might sound like small potatoes compared to, say, smashing the companies to smithereens with the hammer of antitrust …
  • … but the wonks — and some actual lawmakers — think that getting into the companies’ secret sauces could give us a lot of insight into where the most harm is, and could go a long way toward making sure laws apply online and off.

Under the DSA, European authorities are also forcing companies to pull back on those pre-checked boxes, complicated opt-outs and other dark patterns.

  • U.S. law enforcers, particularly at the Federal Trade Commission, have already signaled they think many of those design elements violate laws against unfair or deceptive practices.

Of course, aside from actions to rein in dark patterns, most of this would require busy, fractious lawmakers to overcome inertia and make tech issues a top priority — something they’ve shown themselves to be particularly adept at avoiding.

  • If Congress does feel suddenly inspired to heed the near-unified calls from Americans for privacy legislation, though, bans on certain ad-targeting practices could go in there …
  • … or lawmakers could take just the focus on banning ad-targeting to kids in particular and drop it into a digital-safety bill that responds to concerns about the well-being of young people online. An idea that could land in either of two popular bills certainly has a better chance of becoming law.
  • And perhaps — just as the big platforms extended some privacy protections they offered in Europe to the whole world after GDPR went into effect — the DSA could prompt business changes even if U.S. lawmakers continue to dally.

True, political realities hardly favor U.S. agreement on new tech laws (or anything else), and that might only be getting worse in coming years. But Europe is already changing the fundamental nature of tech as we’ve come to think of it over the last two decades. Lawmakers here might decide they don’t want to get left in the past — and that they’re not so upset by the future.

— Ben Brody (email | twitter)

In Washington

Obviously, everyone is asking what’ll happen to Trump’s Twitter account in a Musk world.

The FTC is eyeing Broadcom’s exclusivity deals again, according to The Information. Although the company settled a long-running FTC probe less than a year ago, there have been complaints that its practices have started back up due to supply chain issues.

The NTIA is asking Americans to weigh in on competition in mobile apps — a study that President Biden’s sweeping executive order on competition asked for.

The CFPB is invoking what it calls “dormant authority” to look into the books of certain non-bank companies, especially fintechs.

Senate Majority Leader Chuck Schumer tweeted he plans to get Alvaro Bedoya confirmed to the FTC this week. Once Bedoya joins the commission, it will have a Democratic majority that can begin to carry out some of Chair Lina Khan’s more ambitious plans.


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On Protocol

The FTC has made it clear it wants to go after the dark patterns that underlie the subscription-ification of everything. So what target do consumer groups want the agency to take on first? Amazon Prime.

In January, Lyft asked if 29-year-old driver Kristian Philpotts needed help. He was already dying. Now his mother wants to know why the company didn’t do more.

Car-sharing could reduce congestion, reclaim streets for people and help protect the climate.

The NTIA wants states to start their bids for funds to help build out broadband networks in unserved areas. But the head of the agency admitted to Protocol that the states will need to begin the process without the FCC broadband coverage maps they’re supposed to base their plans on.

Coming soon

Big Tech is braced for new privacy legislation and antitrust action, but what about the rest of the sector? How should the thousands of small, medium-sized and enterprise-level tech companies prepare for this new regulatory landscape? Will changing policies bring about a more even playing field, or will growth be stunted for smaller businesses with fewer resources? How should the U.S. avoid one-size-fits-all regulation in such a diverse ecosystem while still checking unfair competition and data abuses? Join Protocol and a panel of experts on May 5 at 1 p.m. ET/10 a.m. PT to dive in. RSVP here.


At Intel, we have an over 50-year history of manufacturing innovation, and we believe in the power of technology to create a more responsible, inclusive, and sustainable world for all. Discover how smart infrastructure solutions from Intel can help transform the future.

Learn more

RT does not imply job recommendation

People are already tweeting at Elon Musk asking to be hired at Twitter, seemingly with varying degrees of sincerity. They’re seeking posts ranging from VP of Product to a “VP for the human soul” who has “experience letting time slip away.”

Thanks for reading — see you Wednesday!

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