Exploring the state of tech regulation in 2024, this podcast examines efforts to control big tech, challenges faced by lawmakers in writing regulations, state-level attempts to implement regulatory structures, legal challenges faced by tech platforms, and the potential negative effects of state-level regulations on free speech and smaller innovators.
Courts have recognized the rights of tech companies to create consumer-centric products and rejected attempts to impose certain product creations or limit consumer choice.
Courts have ruled against the FTC's attempts to halt tech company acquisitions, highlighting the importance of the consumer welfare standard in preventing subjective policy interventions and protecting various sectors of the economy.
Deep dives
Courts' Handling of Tech Regulation in 2023
In 2023, courts dealt with various claims and attempts at regulating big tech. Decisions were made against California's age-appropriate design code and Montana's TikTok ban. These cases were based on different government entities trying to limit tech companies' ability to create consumer-centric products. However, courts acknowledged users' rights and access to desired products, recognizing First Amendment rights and rejecting attempts to impose certain product creations or limit consumer choice. Although these cases were stopped, more cases are expected in 2024 as legislative efforts continue.
FTC Cases and Courts' Emphasis on Consumer Welfare
The FTC has pursued cases involving tech mergers, acquisitions, and competition claims. However, courts have largely rejected creative theories shifting away from the consumer welfare standard. Courts have ruled against the FTC's attempts to halt Microsoft's Activision acquisition and Meta's VR fitness company acquisition. The focus on consumer welfare benefits consumers objectively and prevents subjective policy interventions in the tech space and other sectors. It is crucial to understand that if the government wields its power as seen in the FTC cases, it could extend beyond tech companies and affect various areas of the economy.
State-Level Tech Regulation and Concerns
At the state level in 2023, discussions revolved around youth online safety and the drafting of broad laws to regulate technology. Some laws raised concerns about speech rights, privacy, and impact on adult users. Court rulings have struck down Arkansas' ban on young people's social media access and California's age-appropriate design code on First Amendment grounds. Litigation continues, including a challenge to Utah's law. Moreover, there are cases where states are attempting to force social media platforms to allow certain types of speech. These cases pose problems in terms of expressive rights and defining viewpoints. Fragmented state-level regulations, similar to California's data privacy law, create challenges for companies operating nationally and impact smaller innovators. The necessity to comply with multiple laws can hinder the free flow of information and create practical obstacles.
Last year was a wild one for would-be tech regulators. State governments, Congress, and federal agencies are all still champing at the bit to impose some new restrictions on big and small tech firms alike. David Inserra and Jennifer Huddleston comment.