Bill Would Create New US Big Tech Regulator

Google, Meta, Apple, Amazon and other tech companies may need to deal with a new digital platform regulator in the U.S. if Congress passes a bill that seeks to create a Commission to rein in Silicon Valley’s power.

Senator Michael Bennet and Representative Peter Welch introduced the Digital Platform Commission Act of 2022 in the Senate and the House respectively in May. This bill, if approved, would establish a new five-person commission tasked with protecting consumers in the age of Big Tech.

“We need an agency with expertise to have a thoughtful approach here,” said Senator Bennet. According to the Senator, the current institutions aren’t enough to oversight the tech industry. The Federal Trade Commission (FTC) and the Department of Justice (DoJ) are currently focused on competition problems and they do not address many of the industry’s most pressing problems, Bennet argues, such as foreign disinformation or children’s safety.

The bill seems to take ideas from different legal texts around the world, in particular from other bills introduced in the U.S., Europe and the U.K. For instance, the new Federal Digital Platform Commission could designate certain platforms as “Systemically Important Digital Platforms” (SIDP) based on certain criteria like revenue or users — this is similar to the American Innovation and Choice Online Act and to the Digital Markets Act recently approved in Europe. These SIDP may be subject to new data and portability rules or transparency requirements.

The new Commission could also investigate recommendation systems and other algorithmic processes of Big Tech firms to ensure that the algorithmic processes are “fair, transparent and without harmful, abusive or deceptive bias.” There is another requirement that goes to the core of content moderation, and it may conflict with the current protection that digital platforms enjoy under section 230 of the Communication Decency Act. The bill establishes that the Commission could require SIDP to conduct “regular public risk assessment of the distribution of harmful content and steps the SIDP has taken, or plans to take, to mitigate those harms.”

Interestingly, the proposed bill doesn’t go as far as the Digital Services Act in Europe or the Online Safety Bill in the U.K. that requires Big Tech firms to remove illegal (and harmful in the U.K.) content as soon as possible. The Digital Platform Commission Act would only require an assessment and a proactive approach by firms to deal with harmful content.

In addition to the five-member Commission, the bill also proposes the creation of an 18-member Code Council that would develop voluntary or enforceable behavioral codes, technical standards and other policies for digital platforms. In this Code Council there would be representatives of the digital platforms, nonprofit groups, academics and experts in engineering, computer science and other relevant fields. The Council could propose new codes or standards to the Commission, who may adopt, reject or adopt with modifications the proposed codes and standards.

The new agency would also have jurisdiction over merger reviews, but to avoid jurisdictional conflicts with FTC or DoJ, the new agency would only analyze if the transaction is in the public interest. However, the bill doesn’t provide further information about how to assess what is in the public interest. Besides, the Commission could grant exemptions from this review to digital platforms based on the size and other criteria.

The Federal Digital Platform Commission would enjoy a budget akin to the FTC. For the first year it would only have $100 million, but it would increase annually to $500 million in 2027. The FTC’s budget for FY22 is around $430 million.