Shortwave: Social Media Platforms May Soon Be Like ISPs

Shortwave: Social Media Platforms May Soon Be Like ISPs
Photo by eskay lim on Unsplash

The current term of the Supreme Court of the United States (SCOTUS) may prove to be a blockbuster in the fields of First Amendment and Section 230 law. Tech platforms could be facing sea changes in how the United States (U.S.) allows them to operate. In terms of the stakes, obviously, a ruling on First Amendment law would be binding until a future SCOTUS decided to revisit the ruling. With respect to Section 230 — so long as the court doe not rule on the constitutionality of the law — Congress could conceivably return to the statute and rewrite it. And yet, in the current legislative and political climate, it seems unlikely Republicans and Democrats could come to agreement on what such legislation would look like. Moreover, should the two state laws in question withstand SCOTUS review, then other states would likely follow suit and social media platforms might cease to moderate content except in cases where the content is illegal.

Recently SCOTUS asked the Biden Administration for its views in the trio of cases arising from the Florida and Texas social media moderation laws that implicate the First Amendment (NetChoice v. Paxton, NetChoice v. Moody and Moody v. NetChoice.) In short, both statutes purport to address the discrimination conservatives claim they face through the unfair content moderation of platforms like Facebook or Twitter. Generally, both statutes would bar large social media platforms from moderating content based on viewpoint or face punishment in both states. Two tech industry trade associations, NetChoice and the Computer & Communications Industry Association, filed suit against both laws, seeking to have them struck down as violating the First Amendment to the U.S. Constitution. The U.S. Court of Appeals for the Eleventh Circuit struck down most of Florida SB 7072, while the U.S. Court of Appeals for the Fifth Circuit ruled for Texas’ House Bill 20 (HB20). And now, both laws have made their way to a court with some conservatives justices having publicly made arguments in support of reading the First Amendment as allowing state regulation of social media platforms even though precedent has usually protected private entities from being required to carry speech with which they disagree.

Some of the same conservative justices have been clamoring for cases in which the court could “fix” 47 U.S.C. 230. In two cases before the court, Google v. Gonzalez and Twitter v. Taamneh, SCOTUS will be able to address two different aspects of Section 230 immunity. In the first, the court will scrutinize whether a platform’s algorithmic recommendation system qualifies as content moderation traditionally understood as falling within the ambit of the liability shield. In the other case, SCOTUS will try to discern whether Section 230’s immunity for tech platforms from lawsuits extends to situations where a platform tries to find and remove terrorist content may be sued for providing assistance to terrorists in violation of U.S. law.

Over the last few years,  SCOTUS Justice Clarence Thomas had made clear his view that Section 230 should be pared back. In early 2022, Thomas wrote on the occasion of the court turning down a case regarding Facebook’s liability visa vis 47 U.S.C. 230 to express his view again that the highest court in the U.S. should “address the proper scope of immunity under §230 in an appropriate case.” In April 2021., Thomas disagreed with his colleagues declining to hear a case about former President Donald Trump blocking people on his Twitter account and urged to court to address both Section 230 and the First Amendment. Moreover, two of Thomas’ colleagues joined him in disagreeing with SCOTUS’ decision to stay HB20 until the court heard the merits of the dispute. Justices Thomas, Samuel Alito, and Neil Gorsuch cited SCOTUS rulings that would seem to support Texas and Florida, suggesting they are inclined to rule that way.

Other Developments

United States

The United States (U.S.) Justice Department and the Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia “filed a civil antitrust suit against Google for monopolizing multiple digital advertising technology products in violation of Sections 1 and 2 of the Sherman Act.”

The Department of Commerce’s National Telecommunications and Information Administration (NTIA) asserted that the current mobile app store model is harmful to consumers and developers, and recommended policy changes to fix it” and found that“[t]wo companies – Apple and Google – act as gatekeepers over the apps that people and businesses rely on, NTIA found in its “Competition in the Mobile Application Ecosystem” report.”

The National Institute of Standards and Technology (NIST) released “its Artificial Intelligence Risk Management Framework(AI RMF 1.0), a guidance document for voluntary use by organizations designing, developing, deploying or using AI systems to help manage the many risks of AI technologies..”

The Federal Communications Commission’s (FCC) Task Force to Prevent Digital Discrimination announced that “it is offering consumers an opportunity to share their stories and experiences in obtaining broadband internet access.”

United States (U.S.) Representatives Elise Stefanik (R-NY), Ro Khanna (D-CA), and Mike Gallagher (R-WI) reintroduced the “Foreign Adversary Communications Transparency (FACT) Act” (H.R.820) “to counter the influence of China and other foreign adversaries on the United States’ telecommunications infrastructure.”

The National Artificial Intelligence Research Resource (NAIRR) Task Force released “its final report, a roadmap for standing up a national research infrastructure that would broaden access to the resources essential to artificial intelligence (AI) research and development.”

The National Telecommunications and Information Administration (NTIA) “announced the launch of the 2023 5G Challenge in collaboration with the Department of Defense (DOD) accelerate the adoption and development of an open, interoperable, secure, multi-vendor 5G ecosystem.”

The Federal Communications Commission’s Wireline Competition Bureau extended the waiver for “the Lifeline recertification and reverification requirements for those Lifeline subscribers residing on Tribal lands...[that] also addresses the potential impact that it may have on subscribers of both the Lifeline and Affordable Connectivity Programs (ACP).”

The National Institute of Standards and Technology published Federal Information Processing Standard (FIPS) 186-5, Digital Signature Standard (DSS), NIST Special Publication (SP) 800-186, Recommendations for Discrete Logarithm-based Cryptography: Elliptic Curve Domain Parameters, and NIST IR 8323r1,Foundational PNT Profile: Applying the Cybersecurity Framework for the Responsible Use of Positioning, Navigation, and Timing (PNT) Services.

European Union

The European Data Protection Board published its binding decision in the Irish Data Protection Commission’s investigation into WhatsApp.

The European Union Agency for Cybersecurity (ENISA) published an “Engineering Personal Data Sharing.”


The eSafety Commissioner said she “exercised expanded powers during the first 12 months of the Online Safety Act” and “have probed over 1,680 cyberbullying complaints in total and made over 500 informal requests for online platforms to remove content.”

The Department of Home Affairs announced that the “International Counter Ransomware Taskforce (ICRTF) will formally commence its activities” to “strengthen international efforts to combat the scourge of ransomware.” The agency added that ICRTK was “established in Department of Home Affairs' Cyber and Critical Technology Coordination Centre, is part of the 37 country strong United States-led Counter Ransomware Initiative (CRI)” of which “Australia serves as the inaugural chair and coordinator of the Task Force.”


The Office of the Privacy Commissioner of Canada (OPC) found that Home Depot was “sharing details from e-receipts – including encoded email addresses and in-store purchase information – with Meta, which operates the Facebook social media platform, without the knowledge or consent of customers.”


The Quad Senior Cyber Group (consisting of Australia, India, Japan and the United States) met in New Delhi and “committed in the near term to: drive more secure software services and products by common Quad government security practices; establish common cyber security requirements for our nations’ critical infrastructure; conduct a Quad Cyber Challenge (a campaign to raise awareness among our populations and drive action to improve cyber security); collaborating on capacity-building activities and information sharing in the Indo-Pacific region under the Quad Cybersecurity Partnership.”

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Further Reading

TikTok Ban Faces Obscure Hurdle: The Berman Amendments” — Wall Street Journal

Decoding the Hype About AI” — The Markup

Jury Rules for Elon Musk and Tesla in Investor Lawsuit Over Tweets” — The New York Times

Biden Administration Considers Cutting Off Huawei From U.S. Suppliers” — Wall Street Journal

Judge Finds Amazon Broke Labor Law in Anti-Union Effort” — The New York Times

What the U.S. can learn from India’s TikTok ban” — Rest of the World

TikTok flip-flop: Government department bans, then unbans, social media app over spy fears” — The Age

Gee, tanks: Russian hackers DDoS Germany for aiding Ukraine” — The Register

New US ransomware strategy prioritizes victims but could make it harder to catch cybercriminals” — CNN

How US police use digital data to prosecute abortions” — Tech Crunch

EU Weighs Proposal to Charge Data-Heavy Streamers for Telecom Upgrades” — Bloomberg

Why are so many tech companies laying people off right now?” — The Verge

Big Tech groups disclose $10 billion in charges from job culls and cost cuts” — Financial Times

Regulators Find Apple’s Secrecy Violates Workers’ Rights” — The New York Times

‘iPhones are made in hell’: 3 months inside China’s iPhone city” — Rest of the World

Coming Events

7 February

The United States (U.S.) House Financial Services Committee will hold a hearing titled “Combatting the Economic Threat from China.”

Australia’s House of Representatives Standing Committee on Social Policy and Legal Affairs will hold a hearing in its “Inquiry into online gambling and its impacts on those experiencing gambling harm.”

The United States (U.S.) House Energy and Commerce Committee’s Energy, Climate, & Grid Security and Environment, Manufacturing, & Critical Materials Subcommittees will hold a hearing titled "Unleashing American Energy, Lowering Energy Costs, and Strengthening Supply Chains" with discussion of a number of bills, including, H.R. __, the “Securing America’s Critical Minerals Supply Act.” and H.R. __, the “Critical Electric Infrastructure Cybersecurity Incident Reporting Act.”

The United States (U.S.) House Energy and Commerce Committee’s Innovation, Data, and Commerce Subcommittee will markup five bills, including H.R. 750, the “Chinese-owned Applications Using The Information of Our Nation Act of 2023” or the “CAUTION Act of 2023”.; H.R. 784, the “Internet Application Integrity and Disclosure Act” or the “Internet Application I.D. Act”); H.R. 742, the “Telling Everyone the Location of data Leaving the U.S. Act” or the “TELL Act”); H.R. 813, the “Global Investment in American Jobs Act of 2023); and H.R. 752, the “Securing Semiconductor Supply Chains Act of 2023.”

Canada’s Standing Committee on Procedure and House Affairs will hold a hearing as part of its inquiry into “Foreign Election Interference.”

Canada’s Standing Committee on National Defence will hold a hearing on “Cybersecurity and Cyberwarfare.”

The European Union Agency for Cybersecurity (ENISA) will hold its “first ever cybersecurity policy conference together with the European Commission to discuss the evolution of the EU cybersecurity policy framework.”

8 February

The United States (U.S.) House Oversight and Accountability Committee will hold a hearing titled “Protecting Speech from Government Interference and Social Media Bias, Part 1: Twitter’s Role in Suppressing the Biden Laptop Story.”

9 February

The United States (U.S.) Senate Foreign Relations Committee will hold hearing titled “Evaluating U.S.-China Policy in the Era of Strategic Competition.”

10 February

Australia’s House of Representatives Standing Committee on Social Policy and Legal Affairs will hold a hearing in its “Inquiry into online gambling and its impacts on those experiencing gambling harm.”

15 February

The United States (U.S.) National Institute of Standards and Technology (NIST) will hold the Journey to the NIST Cybersecurity Framework (CSF) 2.0 | Workshop #2.

16 February

The United States (U.S.) Federal Communications Commission (FCC) will hold its monthly open meeting.

17 February

Australia’s House of Representatives Standing Committee on Social Policy and Legal Affairs will hold a hearing in its “Inquiry into online gambling and its impacts on those experiencing gambling harm.”

1 and 2 March

The United States (U.S.) National Institute of Standards and Technology’s Information Security and Privacy Advisory Board (ISPAB) will hold its first quarterly meeting of the year.

29 and 30 April

The G7 Digital and Technology Ministers' Meeting will take place.