Last Thursday, a memo was leaked by the Energy and Commerce Committee to their staff, stakeholders, and to the general public that describes different litigation options in an attempt to rein in omnipotent Big Tech companies.

The April 15th memo seeks to bring reform and oversight to the Big Tech platforms that have been operating like the Wild Wild West for the past few years, censoring and banning whomever they don’t agree with–including the sitting President of the United States, Donald J. Trump, who was permanently banned from social media sites like Twitter, and Facebook before leaving office in 2021.

The memo clarifies that their main objectives are to level the unchecked power Big Tech companies currently have and the protection of free speech, noting, “Republicans worked hard to repeal the Federal Communications Commission’s Fairness Doctrine and we will not advocate for a new one.”

The Big Tech memo also states that Energy and Commerce Committee Republicans aim to preserve competition for smaller businesses and entrepreneurships while promoting American tech leadership and innovation.

The staff legislative concepts laid out by the Energy and Commerce Committee apply to dominant Big Tech companies with an annual revenue of $1 billion or more.

The concepts include Section 230 reforms wherein Big Tech companies would be defined as places of “public accommodation” and would prohibit discrimination based on users’ political views or affiliations. This would also limit liability protections in the platform’s ability to moderate content, providing due process to users.

Legislative concept #2 would hold Big Tech companies accountable for the moderation of content such as selling illegal drugs, child exploitation (including child trafficking and child pornography), targeted harassment or bullying of users under the age of 18, and other illegal content on the platforms. The memo further explains, these companies can be held liable if they’re not properly moderating such illegal content from the site. “Failure to implement and maintain such reasonable moderation practices is a violation of Section 5 of the Federal Trade Commission (FTC) Act.”

The memo also seeks to have an appeals process for users who feel they’ve been unjustly censored, removed or permanently banned, or have had content removed that is constitutionally protected under the First Amendment. This would require companies to identify the rule a user is said to have violated, and give them a proper chance to appeal. Where it stands now, social media companies can send an email saying that you’ve violated their Terms of Service or Online Policies, without identifying the specific violation. Often times, the user has no way to appeal the decision, and aren’t clear as to what content was violated.

Along with Section 230 repeals, the memo calls for a 5-year reauthorization of Big Tech company’s Section 230 protections and make adjustments as changes in the industry continue to morph over time.

The moderation of content by Big Tech companies would be required to submit detailed information on not only their content management policies, but the development, changes and process of determining said policies, and would require a “clear and timely” appeals process for challenging content that has been flagged, altered or removed by the platform directly to the FTC. The FTC would then publish the company’s disclosed content management policies and hold Big Tech platforms accountable when they fail to remain transparent.

In addition to content moderation, the memo seeks to expand the Child Online Privacy Protection Act (COPPA) to include requiring Big Tech companies to report on advertising aimed at children and how they verified the advertisements as being age-appropriate. This includes how the platforms authenticate the age of minor users and requires the company to disclose what research is being conducted in establishing protocols for the delivery of content to the younger audience.

This concept would include tracking the short and long-term mental health of children who use the platform by requiring the company maintain tabs on how their product impacts children’s mental health. This includes self-harm, degraded self-worth, or targeted harassment and cyberbullying that overflows to offline real-world experiences.

Lastly, the memo calls for Big Tech companies to work in conjunction with law enforcement to monitor all illegal activity, harassment of users under the age of 18, terrorism, child pornography and child trafficking, and to educate the public as to what resources the user has when they feel their security has been violated while using the platforms.

As the longest standing legislative committee in the U.S. House of Representatives, the Energy and Commerce Committee referenced a previous memo titled “Big Tech Accountability Platform” – spearheaded by Republican Leader Cathy McMorris – that further tackles the recent onslaught on the First Amendment online by social media companies and highlights the censoring of patriots post-January 6th Capitol protest in D.C. :

“Now, free speech is not absolute. A recent example is the horrific attack on our Capitol and related activity online. Big Tech is right to bar content calling for violence, but in the wake of that horrific day there is a quiet and purposeful attempt to conflate anything conservatives say or do as condoning such actions as justification for silencing us. Big Tech’s recent move to permanently ban President Trump should concern us all, and such action has been widely criticized by other world leaders. In a country where we cherish free speech, it should alarm every American – Democrat and Republican alike – to see Big Tech ban the Leader of the Free World with no accountability. If Big Tech can silence a sitting United States President with the support of most of the media and our elite institutions, they can silence anyone else for having unpopular opinions.”

These ongoing issues will only metastasize if Big Tech is unchallenged and their policies remain unthwarted. In this COVID-era, more and more conversations are being had online with social media platforms acting as the digital town square. Big Tech must be held to account for their biased deplatforming and censoring of conservatives who challenge their belief systems and agendas, while simultaneously ignoring illegal activity on their platforms.

Big Tech oligarchs will continue to remove content and voices from their platforms that diverge from the narratives they wish to highlight and promote until restraints are tightened and consequences for violating free speech are amplified. Freedom of speech is not, and should never be considered a partisan issue.

Haley Kennington
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