Digital Services Act, The Brussels Effect, and American Free Speech
Today’s POLITICO Tech podcast episode (20-Aug-2024) got my cogs turning. Host Steven Overly was joined by Adam Candeub, a former Trump administrative official and a law professor at Michigan State University.
According to Candeub, a top priority former President Trump should have when he regains office (Candeub makes his politics very clear) is the protection of free speech. This sense of urgency comes after Thierry Breton, an EU Commissioner responsible for implementing and enforcing the Digital Services Act, posted a public letter on X (formerly: Twitter) warning Elon Musk about the potential spread of mis/disinformation before his live-streamed interview with former President Trump.
This comes amongst a series of warnings and fines governments have issued against Musk and his platform (see: multi-million dollar fines for failing to comply with DSA, the UK is deeming Musk’s tweets as incitements to ongoing riots).
Breton’s public letter resulted in a quippy remark from Musk himself and a stream of concerns about the conflict with the American right to free speech. Aside from the fact that this letter was published without the knowledge of EU Commission President Ursula von der Leyen, it does put into question whether the enforcement of DSA (and broader EU regulation) infringes on American free speech and/or other civil rights.
The EU is a first-mover in platform regulation. American technology companies with a global reach have to adapt to standards of regulation put out by the EU. This is just how it works in an increasingly global economy, particularly with ‘borderless’ platforms. It is legitimate for the EU to curb the spread of fake news and extreme hate speech through the DSA as it is for the US to protect free speech through its constitution.
However, this means there can be conflicts with US law, as we might be seeing with the Digital Services Act. For example, both Texas and Florida have legislation that prohibits social media platforms from censoring or deprioritizing content unfairly or based on viewpoint. This would mean that X, for instance, would need to have a Texas/Florida version of the platform and a rest-of-the-world version of the platform. Is it effective to have geographic segmentation in compliance for these platforms that are ‘borderless’?
Meta claims that the DSA will only have an impact on their EU-facing platforms. Understandably, this would result in higher compliance costs. Right now, since the EU is a crucial market for many of these companies, they streamline compliance, and the entire platform is skewed towards EU standards.
What is clear is that the Brussels effect is a response to what is typically thought of as a US-China tech battle. Coincidently, I watched this video by Vox on How America Became a superpower after listening to the podcast episode. I wouldn’t be surprised if a little bit of all this was a rebuttal to the omnipresent American influence.
In my view — whoever the next President might be — it may be the best for everyone if American tech regulation skews a bit towards the EU model. Who wouldn’t want a fairer and kinder digital world?
