Congress has a lot on its plate when it comes to internet policy: From claims of conservative bias on social networks to terrorist recruitment to disinformation and dishonest political ads, Republicans and Democrats alike have been struggling to get a foothold on how to begin considering these challenges. But the real question is: Just what will they end up doing? A bill markup today in the House Committee on Homeland Security may hold some answers.
The bill, H.R. 4782, sets out to “establish a national commission on online platforms and homeland security, and for other purposes.” The bill text makes it clear that the Commission’s ambit is broad, with a focus on the nexus between online platforms and “acts of targeted violence, including domestic and international terrorism, or covert foreign state influence campaigns.” Various iterations of the bill have circulated and been reported on while civil liberties groups, CDT included, have raised concerns about the scope of the bill, its broad subpoena power, and the implications of its charter for online privacy and free expression. In response, the bill has been revised several times and with each iteration has come to better enshrine protections for these fundamental rights. The latest version of the bill comes much closer to achieving these goals than any prior drafts, including privacy and free expression as core elements of the Commission’s mandate.
The latest version of the bill comes much closer to achieving these goals than any prior drafts, including privacy and free expression as core elements of the Commission’s mandate.
One of the most notable—and arguably, impactful—changes is with respect to the scope of the bill. Prior iterations tasked the Commission with exploring how online platforms have been used “in furtherance of domestic or international terrorism, other illegal activity that poses a homeland or national security threat, … or to carry out a foreign influence campaign that poses a homeland or national security threat to the United States.” The latest version of the bill drops the middle clause — “other illegal activity that poses a homeland or national security threat” — in favor a more tailored mandate that somewhat limits the scope of the Commission’s work. The bill’s scope was furthered narrowed with the exclusion of a federal interagency task force that would have engaged on some of these same questions in the context of federal agency efforts, coordination, and research. Ultimately, that task force’s ambit seemed duplicative not only of some of the Commission’s proposed work, but also other federal initiatives to study similar issues.
A couple of other changes are worth noting: The bill now includes a public comment period which will allow for stakeholders and interested parties to draw attention to research and policy considerations that the Commission might otherwise not be aware of. Similarly, the Commission’s membership will now include at least four individuals with expertise in civil liberties, civil rights, and privacy. Finally, in a nod to the work that civil society organizations have been engaged in for years, the Commission offers the Santa Clara Principles on Transparency and Accountability in Content Moderation as one set of model best practices for online platforms.
The bill is still lacking in a few areas. While the scope of the Commission’s work has been narrowed it still covers two, if not three distinct areas: domestic/international terrorism and foreign influence campaigns. These topics are (and should be) of interest to Congress, however, they are also topics that are separate from each other: at major online platforms, their challenges are largely tackled by different teams, their effect on internet users’ and their online experiences wholly distinct, and their influence on the democratic process very different. Ultimately, the Commission may be out of its depth trying to tackle such disparate issues.
Also concerning are the Commission’s mandates to explore how and whether platforms “have been able to respond effectively” to threats of targeted violence and foreign influence campaigns, and how and whether they “consistently and effectively enforce” policies to limit those threats. It’s unclear how the Commission plans to evaluate platforms’ consistency and effectiveness. The bill tasks the Under Secretary for Science and Technology of the Department of Homeland Security with developing “voluntary approaches” for online platforms to address findings from research on targeted violence and terrorism. While these approaches are set out as voluntary in the text of the bill, it is important for Congress and DHS to remember that, as far as regulation of lawful speech is concerned, there are significant limits under the First Amendment to what they can require of or coerce from companies. Any “voluntary” recommendations must truly remain voluntary, and both DHS and Congress must tread cautiously here.
Despite these shortcomings, the bill has come a long way since it was first introduced. The bill’s evolution, in particular its inclusion of and attention to fundamental rights, are a promising indicator that Congress may be coming to terms with the nuances and challenges of balancing security, privacy, and free expression interests online.