The Biden administration – together with congressional Democrats – has been grappling with the problem of censoring online information and opinion it deems harmful or that constitutes “disinformation.” The latter term can be interpreted as anything contradicting the government-approved narrative on any number of issues. The Department of Homeland Security’s infamous Disinformation Governance Board may have died a quick death, but a network of entities with the same mission have sprung up throughout the federal government. The establishment of the ominously named Foreign Malign Influence Center was the next big step in the Democrats’ war on free speech, and many fear a new bill introduced in the Senate could sound the death knell for a free and open internet. Government oversight of everything Americans see and hear online would become an irreversible reality.
On May 18, Sens. Michael Bennet (D-CO) and Peter Welch (D-VT) introduced the Digital Platform Commission Act of 2023. Its purpose? “To establish a new Federal body to provide reasonable oversight and regulation of digital platforms.” Use of the word “reasonable” could fairly be called into question. It’s one of the words Democrats like to use to convince the public that what they propose will be limited to furthering only what is in the public interest while at the same time being vague enough to allow the arbitrary alteration of criteria. Think about “commonsense” gun laws or the rich paying their “fair share” of taxes and you get the idea.
Free Speech in the Crosshairs
Non-governmental entities dedicated to the suppression of free speech under the guise of defending democracy are on board with this further expansion of government at the expense of individual liberty. Nancy Watzman, a founding director of the Colorado Media Project, welcomed the legislation, claiming that “misinformation about the pandemic, public health, elections and more are polluting our online spaces and having real-world negative impacts in our communities.” However, Watzman did not support her contention with any examples of “real-world negative impacts.”
"It’s time to establish an independent agency to provide comprehensive oversight of social media companies," said Sen. Welch, though the proposed agency will hardly be independent. The Senate bill would establish a panel of five commissioners to be nominated by the president with the advice and consent of the Senate. For context, a clause in the bill prohibits more than three members of the same political party sitting on the commission at the same time. This appears to be Welch’s sole justification for calling the proposed body “independent,” which, one could argue, is decidedly not the proper use of the word.
A Commission with Limitless Authority?
Though Sen. Welch singled out social media companies, the bill appears to go far beyond those platforms. As is so often the case with legislation, it requires a not insignificant amount of legal and semantic interpretation to figure out just what kinds of “digital platforms” fall under the proposed jurisdiction of the commission. However, section 5 of the bill appears to indicate that the new agency’s scope of authority could be practically limitless:
(a) PLENARY JURISDICTION – The Commission shall have jurisdiction over any digital platform, the services of which –
(1) originate or are received within the United States; and
(2) affect interstate or foreign commerce.
This can certainly be interpreted as potentially including almost every online business and social media platform except, perhaps, blogs or personal advice sites managed by individuals that have limited audiences. The bill does make an exception for news organizations, per section 3 of the act:
(D) NEWS ORGANIZATIONS. – The term ‘‘digital platform” does not include an entity whose primary purpose is the delivery to the public of news that the entity writes, edits, and reports.
However, an earlier section of the bill lists several ways in which unregulated digital platforms can supposedly cause “demonstrable harm,” including:
Abetting the collapse of trusted local journalism.
Enabling addiction and other harms to the mental health of the people of the United States, especially minors.
Disseminating disinformation and hate speech.
In some cases, radicalizing individuals to violence.
Perpetuating discriminatory treatment of communities of color and underserved populations.
One cannot help but wonder if this new agency would, at some point, target even news media sites it accuses of being a party to one or more of the above-mentioned transgressions. After all, the progressive left, with the open support of leading Democratic Party officials, has made it abundantly clear it believes free speech is not absolute and that it should be denied to those Americans who engage in “harmful” or “hateful” speech. If the First Amendment can be that easily cast aside, it is no great leap to imagine this new government entity targeting even some of the very organizations this bill exempts, should a quorum of the commissioners decide it is necessary. As with all unelected regulatory bodies, the rules and standards can be altered at any time, behind the scenes.
Several clauses in the Digital Platform Commission Act will undoubtedly raise the hackles of liberty-minded Americans. Will this new body rely upon an army of civilian informants? That appears to be one of the intentions. Under section 6: “The Commission, for purposes of monitoring violations of any provision of this Act (and of any regulation prescribed by the Commission under this Act) … may recruit and train any software engineer, computer scientist, data scientist, or other individual with skills or expertise relevant to the responsibilities of the Commission…”
There also appears to be a built-in justification for avoiding transparency: “The Commission may withhold publication of records or proceedings containing secret information affecting the national defense.” This potentially gives the commission a wide berth to go after certain sites while keeping its internal deliberations secret by invoking the “national security” clause.
The commission would establish a “code council” to “develop proposed voluntary or enforceable behavioral codes, technical standards, or other policies for digital platforms through the code process under subsection (e), including with respect to transparency and accountability for algorithmic processes.” That 18-member body would include six individuals representing “nonprofit public interest groups, academics, and other experts not affiliated with commercial enterprises, with demonstrated expertise in technology policy, law, consumer protection, privacy, competition, disinformation, or another area the Chair determines relevant.”
The proposed annual budget for the commission would be $100 million for fiscal year 2023, rising every year to $500 million annually for fiscal years 2027 to 2032.
The First Amendment is mentioned once in the 60-page bill:
“Throughout the history of the United States, the Federal Government has established reasonable regulation, consistent with the First Amendment to the Constitution of the United States, to promote a diversity of viewpoints, support civic engagement, and preserve the right of citizens to communicate with each other, which is foundational to self-governance.”
If this is indeed its purpose, should this legislation not be welcomed by Americans concerned about their safety while online? Or is this a dangerous lurch down the path toward total government control and, effectively, the end of free speech? At what point does the perception of what is in the “public interest” collide with individual rights and freedoms, and how many of our elected representatives in Congress – from either party – truly care about the latter?
