Regulating Big Tech: Legal Implications

Regulating Big Tech: Legal Implications

Legal Sidebari

Regulating Big Tech: Legal Implications
Updated September 11, 2019
This Sidebar will be regularly updated to include additional CRS products in the list at the end.
Amidst growing debate over the legal framework governing social media sites and other technology
companies, several Members of Congress have expressed interest in expanding current regulations of the
major American technology companies, often referred to as “Big Tech.” This Legal Sidebar provides a
high-level overview of the current regulatory framework governing Big Tech, several proposed changes
to that framework, and the legal issues those proposals may implicate. The Sidebar also contains a list of
additional resources that may be helpful for a more detailed evaluation of any given regulatory proposal.
Current Regulatory Landscape
The “big five” tech companies—Alphabet (Google’s parent company), Amazon, Apple, Facebook, and
Microsoft—play a critical role in today’s marketplace and in society at large. As commentators have
pointed out, the technology industry has largely developed free from any significant federal regulation,
particularly when viewed in contrast to potentially analogous industries such as radio, television, or
telephone services. There are no omnibus federal laws akin to the Communications Act or the Federal
Aviation Act governing the industry as a whole. Instead, the internet has largely operated under a system
of self-governance. In fact, one federal law has partially shielded online service providers from lawsuits
that might otherwise limit their conduct: Section 230 of the Communications Decency Act of 1996 (CDA)
immunizes many online platforms that serve as hosts for user-generated content from some lawsuits that
would impose liability on these platforms for their content-publishing activities. Section 230 immunity is
not absolute, though. Among other exceptions, the law does not shield online platforms from prosecution
under federal criminal statutes—and does not shield platforms from liability for their own content.
Nonetheless, Section 230 does broadly protect platforms’ content-hosting activities.
This is not to say, however, that the internet is a completely lawless zone or that there is no federal
regulation of the internet. Individual platforms and their users may be held accountable for actions they
take online. For example, the Department of Justice (DOJ) has indicted a number of sites—including
Backpage.com—under various criminal statutes, alleging that the platforms unlawfully facilitated
prostitution. Internet platforms may also be subject to liability under certain federal laws such as the
Digital Millennium Copyright Act, which generally governs the protection of copyrights online.
Additionally, the Federal Trade Commission (FTC) Act’s prohibition of “unfair or deceptive acts or
practices” (UDAP) applies to most internet platforms and users, and the FTC actively enforces this
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prohibition. Indeed, reports suggest that the FTC may soon impose fines on Facebook as part of an
ongoing investigation into whether Facebook’s privacy practices violated a 2011 consent decree that
settled UDAP allegations. The FTC has also indicated that social media influencers’ failure to disclose
any connections to marketers of products that they endorse may be a UDAP violation.
Along with internet platforms and users, companies that provide internet access—often referred to as
broadband internet access service (BIAS) providers—are currently subject to the FTC Act’s UDAP
prohibition. However, there have been attempts to more comprehensively regulate BIAS providers
through net neutrality regulation. In particular, although it ultimately reversed its decision in 2017, in
2015 the Federal Communications Commission (FCC) issued the Open Internet Order, in which it
classified BIAS providers as common carriers subject to various obligations under Title II of the
Communications Act. Among other things, the 2015 Order would have prohibited BIAS providers from
blocking or throttling (i.e., degrading) lawful internet traffic or from engaging in “paid prioritization”
(i.e., favoring some internet traffic over other traffic in exchange for consideration). Further, while the
Open Internet Order was still in effect, the FCC issued a rule under its Title II authority that would have
required BIAS providers to comply with various data protection requirements, such as consumer consent,
data security, and data breach notification requirements. However, Congress subsequently overturned this
rule pursuant to the Congressional Review Act.
Proposals for New Regulations
As noted above, commentators and politicians have increasingly expressed concern about how technology
companies have regulated themselves thus far. For example, to the extent that these companies serve as
platforms for creating and sharing content, many have alleged that the platforms allow (or even promote,
intentionally or unintentionally) the proliferation of false or harmful content. On the other hand, some
have argued that these platforms have gone too far in policing content posted on their sites and have
improperly taken down or otherwise filtered valuable content. Another significant source of criticism
comes from how these companies handle user data: inadequate corporate privacy practices and intentional
intrusions into private computer networks have exposed the personal information of millions of
Americans. In some cases, companies intentionally collect or use personal data in ways that may not
comport with many users’ privacy expectations. And underlying these concerns is the idea that relatively
few companies have come to occupy significant market positions, creating the specter of monopoly power
and leaving consumers with little option but to accept the terms of these major services if they want to
participate in modern life.
Scholars and elected officials have proposed a wide variety of regulations to address these concerns.
Perhaps most widely discussed, in late March, Mark Zuckerberg, the founder and chief executive of
Facebook, called for “regulation in four areas: harmful content, election integrity, privacy and data
portability.” While Zuckerberg’s proposals were met with some skepticism, his suggestions are only some
of the many policy proposals that would tackle a variety of issues concerning Big Tech. The table below
introduces just a few of these proposals. This Sidebar does not evaluate the merits of these proposals,
which have been subject to significant policy debate. Instead, the Sidebar focuses on the various legal
issues these policy proposals may raise.

General Policy Area
General Policy Proposals, Examples of Proposed Federal Legislation or Regulation or
Existing State or International Laws
Section 230
Repealing or amending the CDA’s Section 230 to limit the immunity provided to internet
Immunity
platforms that host others’ content

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General Policy Area
General Policy Proposals, Examples of Proposed Federal Legislation or Regulation or
Existing State or International Laws

e.g. - The Biased Algorithm Deterrence Act of 2019 would provide that social media services
“shall be treated as a publisher or speaker” of certain user-generated content if they display it “in
an order other than chronological order”
Content Moderation Creating an independent body to set standards for content moderation, and possibly to review
sites’ decisions about what kind of content to allow on their platforms
Foreign Influence in
Requiring platforms to make disclosures and statements of attribution or “disclaimers” to users,
U.S. Elections
including identification of who paid for certain political advertisements

e.g. - The Honest Ads Act, incorporated with some changes into H.R. 1 (116th Cong.) and
reintroduced as a stand-alone bill in the Senate as S. 1356 (116th Cong.), would extend federal
campaign finance law disclosure and disclaimer requirements to online platforms for paid internet
and paid digital communications
Misinformation
Requiring platforms to identify or ban bots or inauthentic accounts

e.g. - California passed a law in 2018 making it unlawful to use “an automated online account” to
transmit certain communications

e.g. - The DETOUR Act, S. 1084 (116th Cong.), would prohibit large online services from
conducting experiments on or manipulating users absent disclosure and informed consent
Data Privacy and
Limiting platforms’ ability to use consumers’ data, or imposing statutes of limitations on how long
Protection
platforms may use data

Requiring opt-outs from or opt-ins into certain uses of data

Requiring platforms to be more transparent about how they use consumer data

e.g. - The California Consumer Privacy Act and the European Union’s General Data Protection
Regulation are aimed at protecting users’ data in various ways

e.g. - The Do Not Track Act, S. 1578 (116th Cong.), would require the FCC to implement a
system to allow consumers to opt out of tracking, and punish companies that disregard
consumers’ preferences
Antitrust
Applying antitrust law to “break up Big Tech”

e.g. - DOJ and FTC are reportedly considering investigating certain tech companies
Industry-wide Duties Treating online platforms similarly to other media companies or public utilities that the FTC and
FCC would regulate and imposing a duty to deal (i.e., requiring platforms to neutrally serve
consumers on a first-come, first-served basis), or duties of care (e.g., requiring platforms to
prevent or mitigate harms to users)

e.g. - The Save the Internet Act of 2019, H.R. 1644 (116th Cong.), would reclassify BIAS providers
as common carriers by reinstating the FCC’s Open Internet Order
Possible Legal Issues
Section 230. The CDA’s Section 230, discussed above, immunizes online service providers from a wide
variety of federal and state lawsuits. When crafting new laws regulating technology companies, Congress
could allow governments or private parties to hold service providers liable for their decisions to publish or
restrict access to certain types of content. Congress may consider creating an express exemption from
Section 230, akin to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, which
expressly provided that Section 230 immunity would not apply in federal civil actions and state criminal
prosecutions that mirror specified federal offenses. Without an express exemption to Section 230, legal
questions could arise as to how new laws imposing liability on service providers for publishing certain
content interact with Section 230’s general immunity provisions.

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First Amendment. Any of the general proposals discussed in this Sidebar could raise First Amendment
concerns, depending on the precise contours of a given regulation. Internet platforms may raise a variety
of free speech challenges to federal regulation. The Supreme Court has said that “the creation and
dissemination of information are speech,” suggesting that a broad array of internet content could be
constitutionally protected. A law that regulates internet content on the basis of “the topic discussed or the
idea or message expressed” or that imposes different burdens based on the speaker may be subject to
heightened scrutiny under the Free Speech Clause of the First Amendment. However, there are certain,
limited categories of speech that the government may regulate more readily because of their content. For
example, these categories may define the scope of the government’s ability to restrict online content
promoting terrorism or violence, given that categories of speech such as incitement and true threats have
long received more limited First Amendment protection. Apart from government acts prohibiting certain
types of speech, regulations that compel additional speech may also raise free speech concerns.
Disclosure requirements may be seen as “content-based regulation[s] of speech,” although courts may be
more likely to uphold disclosure requirements in the context of commercial speech. Disclosure
requirements that apply to political speech or communications related to elections may be subject to a
different analysis.
Data Privacy and Protection. The legal paradigms governing the security and privacy of personal data
are complex and technical, and lack uniformity at the federal level. Should Congress consider a
comprehensive federal data protection law, its legislative proposals may involve numerous decision points
and legal considerations. Issues may include the law’s conceptual framework (i.e., whether it is
prescriptive or outcome-based), its scope and definition of protected information, the role of the FTC or
another federal enforcement agency, or external constitutional constraints on Congress’s ability to
regulate data privacy.
Common Carrier Classification of BIAS Providers. As mentioned above, legislative proposals such as
the Save the Internet Act would reinstate the FCC’s Open Internet Order and reclassify BIAS providers as
common carriers under Title II of the Communications Act. The FCC’s Open Internet Order was subject
to a number of legal challenges, although it was ultimately upheld by the U.S. Court of Appeals for the
D.C. Circuit. (The D.C. Circuit denied a petition to reconsider this decision en banc, over the dissent of
then-Judge Brett Kavanaugh.) These challenges included concerns about whether the FCC’s actions were
consistent with the Communications Act; whether the FCC had sufficiently justified its decision to
reclassify BIAS providers; and whether some of the rules violated the First Amendment. While some of
these concerns may be obviated by congressional action, there may be additional legal considerations
raised by any new regulation in this area. For instance, reclassifying BIAS providers as common carriers
may create legal uncertainty over the nature of their data protection obligations, as it would remove them
from the FTC’s jurisdiction.
Antitrust. Antitrust law offers several tools that might apply to the regulation of Big Tech. For example,
the Clayton Act prohibits any merger that could “substantially [] lessen competition, or [] tend to create a
monopoly” and could theoretically be used to unwind arguably problematic mergers, like the Facebook–
Instagram merger from 2012 or Alphabet’s acquisitions of Waze and Nest in 2013 and 2014, respectively.
Similarly, Section 2 of the Sherman Act makes it unlawful to monopolize or to conspire to monopolize a
marketplace. Some have argued that Facebook or Alphabet have engaged in exclusionary conduct that
justifies monopolization charges under Section 2, which could be used to break those companies up or
force them to change certain anticompetitive business practices.
Ultimately, any antitrust litigation against these firms would raise complicated legal and empirical
questions. For instance, while the government can unwind a past merger under the Clayton Act, it would
have to show how the merger meaningfully decreased competition in a particularly defined marketplace.
Depending on the merger in question, this would raise a number of novel legal questions surrounding
market definition in dynamic technology industries. For example, some commentators have questioned

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whether Facebook’s market should be defined with reference to potential members of its social network,
advertising on the internet, or advertising writ large. These matters and other difficult questions would
persist in a monopolization prosecution. Significantly, in a monopolization case, the government
generally has to show that a defendant possesses market power, which is usually defined as the ability to
profitably raise prices above competitive levels. Some have pointed out that because many tech
companies do not charge users for their services, demonstrating a monopoly may be more complicated.
Further, a showing of market power often requires proof that the defendant-firm is insulated from new
rivals by barriers to entry. Alphabet CEO Larry Page has argued that the firm’s potential competitors are
“only a click away.” However, others, including European antitrust authorities, have argued that many
digital markets possess certain structural features—including increasing returns to scale, economies of
scope, and network effects—that make entry uniquely difficult. Commentators do not agree on how to
resolve these tensions. Any antitrust approach would pose numerous practical challenges, such as how to
“unscramble” entities that have been merged for a significant period of time. These issues, and others,
would likely need to be considered if antitrust law were to be employed to regulate big tech.

The following CRS Products provide more information on the issues discussed above:
CRS Legal Sidebar LSB10306, Liability for Content Hosts: An Overview of the Communication Decency Act’s Section
230, by Valerie C. Brannon
CRS Report R45650, Free Speech and the Regulation of Social Media Content, by Valerie C. Brannon
CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion
CRS Report R45713, Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, by Victoria L.
Killion
CRS Report R45700, Assessing Commercial Disclosure Requirements under the First Amendment, by Valerie C.
Brannon
CRS Report R45320, Campaign Finance Law: An Analysis of Key Issues, Recent Developments, and Constitutional
Considerations for Legislation, by L. Paige Whitaker
CRS In Focus IF10758, Online Political Advertising: Disclaimers and Policy Issues, by R. Sam Garrett
CRS In Focus IF11207, Data Protection and Privacy Law: An Introduction, by Stephen P. Mulligan, Chris D.
Linebaugh, and Wilson C. Freeman
CRS Report R45631, Data Protection Law: An Overview, by Stephen P. Mulligan, Wilson C. Freeman, and Chris D.
Linebaugh
CRS Legal Sidebar LSB10303, Enforcing Federal Privacy Law—Constitutional Limitations on Private Rights of Action, by
Wilson C. Freeman
CRS Insight IN10879, Data, Social Media, and Users: Can We All Get Along?, by Chris Jaikaran
CRS Report R40616, The Net Neutrality Debate: Access to Broadband Networks, by Angele A. Gilroy
CRS In Focus IF10955, Access to Broadband Networks: Net Neutrality, by Angele A. Gilroy
CRS In Focus IF11234, Antitrust Law: An Introduction, by Jay B. Sykes
CRS Report R45910, Antitrust and “Big Tech”, by Wilson C. Freeman and Jay B. Sykes

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Author Information

Valerie C. Brannon, Coordinator

Legislative Attorney

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