Regulating Big Tech: CRS Legal Products for the 118th Congress

Regulating Big Tech: CRS Legal Products for the 118th Congress

Legal Sidebari

Regulating Big Tech: CRS Legal Products for
the 118th Congress
Updated January 29, 2024
In recent years, some Members of Congress have expressed interest in expanding regulation of the major
technology companies, often referred to as “Big Tech.” Members have introduced a wide variety of
proposals intended to achieve a number of distinct goals. Some proposals have focused on competition
concerns and sought to amend antitrust and consumer protection laws. Some have targeted data protection
and privacy. Some have focused on social media companies’ content moderation practices, addressing
sometimes conflicting concerns about the circulation of harmful content and the removal of lawful
content. Finally, some have weighed in on the debate over net neutrality.
At the beginning of the 118th Congress last year, commentators predicted that Congress would consider
legislative action on these issues. Commentators have forecasted continued interest in 2024, including
increased attention on artificial intelligence. This Legal Sidebar compiles CRS products discussing legal
issues related to regulating Big Tech. The text of this Sidebar focuses on proposals to regulate Big Tech,
but as the linked products discuss, some Members have also argued against these regulatory proposals. A
separate CRS report more broadly discusses science and technology issues in the 118th Congress and
includes links to CRS products discussing policy issues. Congressional staff may contact Valerie Brannon
or the authors of the following products with questions about these issues.
Antitrust
Antitrust laws are designed to protect economic competition. In recent years, some Members of Congress
have expressed concern about the competitive practices of Big Tech firms and have introduced bills
specifically addressing competition issues in the digital economy.
CRS In Focus IF11234, Antitrust Law: An Introduction, by Jay B. Sykes
CRS Report R46875, Antitrust Reform and Big Tech Firms, by Jay B. Sykes
CRS Report R47228, The American Innovation and Choice Online Act, by Jay B. Sykes
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LSB10889
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

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Content Moderation
Some Members of Congress have raised concerns about social media platforms’ content promotion and
moderation practices, meaning platforms’ decisions about what user speech to host and how to present it.
Members have argued variously that online platforms do not do enough to combat harmful content and
that platforms take down too much lawful content. One legislative focus has been amending a federal law
known as Section 230, which courts have generally applied to grant platforms significant immunity for
their decisions to host or restrict third-party content. Other proposals have more directly targeted specific
types of harmful content or content moderation practices. These proposals may implicate constitutional
free speech issues, as discussed in the following products.
Section 230
CRS Video WVB00521, Section 230: A Legal Primer for the 118th Congress, by Valerie C. Brannon and
Eric N. Holmes
CRS Report R46751, Section 230: An Overview, by Valerie C. Brannon and Eric N. Holmes
CRS Report R47753, Liability for Algorithmic Recommendations, by Eric N. Holmes
CRS Legal Sidebar LSB11097, Section 230 Immunity and Generative Artificial Intelligence, by Peter J.
Benson and Valerie C. Brannon
First Amendment
CRS Video WVB00520, Online Content Moderation: A Legal Primer for the 118th Congress, by Valerie
C. Brannon and Eric N. Holmes
CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion
CRS In Focus IF12308, Free Speech: When and Why Content-Based Laws Are Presumptively
Unconstitutional, by Victoria L. Killion
CRS Report R45650, Free Speech and the Regulation of Social Media Content, by Valerie C. Brannon
CRS Legal Sidebar LSB10748, Free Speech Challenges to Florida and Texas Social Media Laws, by
Valerie C. Brannon
CRS Legal Sidebar LSB10393, Appeals Court Says First Amendment Limits Regulation of Online
Political Advertising: Implications for Congress, by Valerie C. Brannon and L. Paige Whitaker
CRS Legal Sidebar LSB10742, Online Content Moderation and Government Coercion, by Valerie C.
Brannon and Whitney K. Novak
CRS Legal Sidebar LSB11012, Louisiana Court Rules on Government Communications with Social
Media Companies, by Valerie C. Brannon
CRS Report R47049, Children and the Internet: Legal Considerations in Restricting Access to Content,
by Eric N. Holmes
CRS Legal Sidebar LSB11020, Online Age Verification (Part I): Current Context, by Eric N. Holmes
CRS Legal Sidebar LSB11021, Online Age Verification (Part II): Constitutional Background, by Eric N.
Holmes
CRS Legal Sidebar LSB11022, Online Age Verification (Part III): Select Constitutional Issues, by Eric N.
Holmes

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CRS Legal Sidebar LSB11071, NetChoice v. Bonta and First Amendment Limits on Protecting Children
Online, by Peter J. Benson
CRS Report R45713, Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, by
Victoria L. Killion
CRS In Focus IF12180, False Speech and the First Amendment: Constitutional Limits on Regulating
Misinformation, by Valerie C. Brannon
CRS Legal Sidebar LSB10723, Federal Civil Action for Disclosure of Intimate Images: Free Speech
Considerations, by Victoria L. Killion
Intellectual Property
Big Tech’s activities intersect with many aspects of intellectual property (IP) law. IP seeks to encourage
innovation and competition by giving owners limited rights to control uses of certain kinds of inventions
(through patents), confidential information (through trade secrets), creative works (through copyright),
and identifiers of goods and services (through trademarks). Recently, some Members of Congress have
raised questions about how IP rights may be affected by artificial intelligence (AI). These questions
include whether AI programs infringe copyrights, whether AI creations can be copyrighted or patented,
and whether to enact legislation to protect the right of publicity—i.e., the right to control uses of one’s
voice, image, and likeness—from AI imitations. Other IP issues affecting Big Tech include the Digital
Millennium Copyright Act, which governs how copyright protections work online; legal protections for
trade secrets; litigation and enforcement of patent rights; and debates over which types of inventions
should be eligible for patent protection.
CRS In Focus IF11478, Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online
Service Providers: A Legal Overview, by Kevin J. Hickey
CRS Legal Sidebar LSB10922, Generative Artificial Intelligence and Copyright Law, by Christopher T.
Zirpoli
CRS Legal Sidebar LSB11052, Artificial Intelligence Prompts Renewed Consideration of a Federal Right
of Publicity, by Christopher T. Zirpoli
Data Protection and International Data Flows
Some Members of Congress have expressed concern about how Big Tech companies protect the data
companies gather from users and have introduced a number of data protection bills focused on privacy
and security. In recent years, the federal government has also focused on interactions with other
countries—notably, working to meet standards prescribed by the European Union.
CRS In Focus IF11207, Data Protection and Privacy Law: An Introduction, by Stephen P. Mulligan and
Chris D. Linebaugh
CRS Report R45631, Data Protection Law: An Overview, by Stephen P. Mulligan and Chris D.
Linebaugh
CRS Legal Sidebar LSB10776, Overview of the American Data Privacy and Protection Act, H.R. 8152,
by Jonathan M. Gaffney, Eric N. Holmes, and Chris D. Linebaugh
CRS In Focus IF12244, Unfair or Deceptive Acts or Practices (UDAP) Enforcement Authority Under the
Federal Trade Commission Act, by Eric N. Holmes
CRS Legal Sidebar LSB10839, FTC Considers Adopting Commercial Surveillance and Data Security
Rules, by Chris D. Linebaugh

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CRS Legal Sidebar LSB10846, The EU-U.S. Data Privacy Framework: Background, Implementation,
and Next Steps, by Eric N. Holmes
CRS Report R46724, EU Data Transfer Requirements and U.S. Intelligence Laws: Understanding
Schrems II and Its Impact on the EU-U.S. Privacy Shield, by Chris D. Linebaugh and Edward C. Liu
Cross-Border Investment and Commercial Transactions
Several legal frameworks allow the United States to evaluate national security and foreign policy risks
posed by private commercial transactions involving technology companies. Through export controls,
economic sanctions, the Committee on Foreign Investment in the United States, and sector-specific
review bodies, the executive branch has authority to review a wide range of commercial dealings, which
often include tech-related transactions. Some Members of Congress and state governments have proposed
expanding these frameworks to address concerns over foreign-owned technology, such as TikTok, and
transactions not captured under existing structures. These proposals can raise legal issues about the
programs’ structure and operations.
CRS Legal Sidebar LSB11034, National Security Review Bodies (Part I): Legal Context and
Comparison, by Steve P. Mulligan and Chris D. Linebaugh
CRS Legal Sidebar LSB11035, National Security Review Bodies (Part II): Creating New Review Systems,
by Steve P. Mulligan
CRS In Focus IF11760, The Information and Communications Technology and Services (ICTS) Rule and
Review Process, by Stephen P. Mulligan
CRS Report R46693, Huawei and U.S. Law, by Stephen P. Mulligan and Chris D. Linebaugh
CRS Legal Sidebar LSB10895, New FCC Rules Ban Authorizations for Equipment Posing National
Security Risks, by Chris D. Linebaugh
CRS In Focus IF12415, CFIUS Executive Order on Evolving National Security Risks and CFIUS
Enforcement Guidelines, by Cathleen D. Cimino-Isaacs, Steve P. Mulligan, and Karen M. Sutter
CRS Legal Sidebar LSB10940, Restricting TikTok (Part I): Legal History and Background, by Steve P.
Mulligan
CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for
Congress, by Steve P. Mulligan and Valerie C. Brannon
CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by
Sanchitha Jayaram and Madeline W. Donley
Net Neutrality and Common Carrier Classification
Net neutrality generally refers to the idea that internet service providers should neither control how
consumers use their networks nor discriminate among the content providers that use their networks. The
Federal Communications Commission has gone back and forth on whether broadband internet access
service (BIAS) should be classified as a common carrier and subject to net neutrality requirements.
Members of Congress have sometimes sought to weigh in on this debate with legislative classifications of
BIAS providers. Further, in recent years, some Members have suggested extending a common-carrier-like
nondiscrimination obligation to social media companies.
CRS Report R46973, Net Neutrality Law: An Overview, by Chris D. Linebaugh

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CRS In Focus IF12513, FCC Adopts Proposed Net Neutrality Rule, by Chris D. Linebaugh and Patricia
Moloney Figliola
CRS Infographic IG10037, FCC Regulation of Broadband Service and Action on Net Neutrality, by Chris
D. Linebaugh

Author Information

Valerie C. Brannon, Coordinator

Legislative Attorney

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