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‘Gaining Steam’

Big Tech Concept From Warren, Graham Divides Senate

A potential legislative proposal from Sens. Lindsey Graham, R-S.C., and Elizabeth Warren, D-Mass., that would create a new tech regulator (see 2209120059) is dividing the Senate.

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It’s gaining steam,” Graham told us Thursday. “I’m meeting with Elizabeth here soon to try to get it kind of wrapped up, so we can share it with people. So what we’ll do is try to get all the details worked out and socialize it with people in the industry and consumer folks.” Warren told us she had no update, and her office didn’t comment Friday. Asked if the new regulator would cover both privacy and antitrust enforcement, Graham said, “It’s going to be an array of things: content moderation. It’s a license, right? Here’s what you’ve got to do to get a [content moderation] license.”

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and Sen. Richard Blumenthal, D-Conn., told reporters last week they’re interested in the concept. Blumenthal noted that during Tuesday’s hearing with the Twitter whistleblower, he made his first public remarks floating the idea of a new tech regulator. “I haven’t reached a final conclusion, but the mounting evidence shows that the current regulatory structure is failing,” said Blumenthal. “It’s simply inadequate, and I could still be persuaded to give new authority to the FTC, but I think there’s a growing case for a new regulatory body.” Durbin said: “I can tell you the [regulatory structure] we currently have is generally felt to be ineffective.”

Republicans were less enthusiastic. Sen. Josh Hawley, R-Mo., told us Graham has kept him in the conversation while developing the bill. “I have to say I’m pretty skeptical out of the gate on it because I think the FTC that we have right now, I don’t think has historically done a good job,” said Hawley. “I think we need dramatic reform of what we have currently, as opposed to adding a new agency.” The FTC just needs rules to enforce, which “we don’t currently have,” said Sen. John Cornyn, R-Texas. A new tech regulator “would accomplish the same thing if we make sure the FTC does the job that they’re supposed to do,” said Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa. “And evidently [the FTC] issued the right orders [concerning Twitter’s data security allegations] but didn’t follow through to make sure it was enforced.”

The Senate Homeland Security Committee zeroed in last week on testimony from Twitter, TikTok, Meta and YouTube. The platforms weren’t forthcoming about documents the committee is seeking on content moderation and algorithms, Chairman Gary Peters, D-Mich., told us: “Even things that I expected them to bring, to put on the record.” The committee will need to do more platform oversight, he said, noting he has sought information voluntarily for months. Asked if subpoenas are in order, he said, “Patience is wearing thin.”

Hawley supported a private right of action on content moderation issues involving Communications Decency Act Section 230. He wants platforms to adopt a First Amendment “posture.” If online material is First Amendment-protected, there’s plenty of Supreme Court case law to help platforms determine what should be left alone, he said: “If it’s speech that incites violence or directly encourages violence, then I think sure, take it down. But government shouldn’t be policing that. Just lift Section 230 and let individuals sue these companies if they don’t follow their terms of service. Let the market take care of it.” President Joe Biden urged Congress Thursday to “get rid of special immunity for social media companies and impose much stronger transparency requirements.”