Congress hasn’t been able to make social media safer. Here’s why

By Brian Fung, CNN

Washington (CNN) — Wednesday’s emotional Senate Judiciary Committee hearing grilling tech CEOs focused on Silicon Valley’s failures to protect kids online. But it also spotlighted Congress’ own glaring — and longstanding — inability to pass any meaningful legislation to rein in tech platforms.

According to more than a half-dozen front-line participants in the battle to regulate tech, the gridlock boils down to three main factors: Lobbying and partisanship, genuine disagreements over hugely consequential questions about the future of privacy and free speech, and who technology is meant to serve in the first place.

Big Tech has become a bipartisan punching bag on Capitol Hill. But US lawmakers have sat by while consumer advocates, whistleblowers and state attorneys general have amassed troves of evidence suggesting tech giants may have endangered users’ health or monopolized key sectors of the economy.

Lobbying and influence

Tech companies spend millions in Washington to get their way. This has been true since the early 2010s, when tech companies began realizing the benefits of influencing policymakers on issues including net neutrality and privacy.

As with other industries, Big Tech’s influence machine involves campaign contributions to members of Congress, as well as the hiring of registered lobbyists to gain exclusive access to lawmakers. But it also includes a wide and sophisticated network of think tanks, advocacy groups and trade associations that are now a basic feature of the legislative process.

“They use the same playbook that the tobacco companies used, that the fossil-fuel industry has used,” said Danny Weiss, chief advocacy officer at Common Sense Media, a consumer advocacy group. “So that’s all real and that’s definitely formidable.”

Lobbying is not inherently bad in a democracy that gives everyone a voice, advocates on both sides say. But the tech industry’s deep pockets give it a distinct advantage.

Sometimes, differences between tech companies can create openings to sow chaos.

This week, Microsoft announced its support for the Kids Online Safety Act, a leading social media bill. But Microsoft has only a small stake in social media with its ownership of LinkedIn, so its commitment stands to make life far more difficult for rivals such as Google, which owns YouTube, while minimizing the impact to itself.

Tech analyst Ben Thompson has called this phenomenon a “strategy credit.”

“It’s cost-less for Microsoft to embrace KOSA,” said Adam Kovacevich, founder of the tech advocacy group Chamber of Progress and a former Google policy director. “That’s not their business … their business is business software.”

Occasionally, the machine springs into action to defeat specific legislation. In 2022, for example, industry advocates spent tens of millions of dollars on advertising against a landmark antitrust bill that would’ve forced sweeping changes to US app stores. Although the legislation cleared a key committee, it was never brought to the Senate floor and hasn’t budged since.

Ordinary congressional gridlock

Apart from the pressure outside groups bring to bear, lawmakers’ own conflicting priorities and incentives can make legislating difficult.

For years, Republican stonewalling has made it almost impossible for Congress to perform even basic functions such as passing budgets and raising the debt ceiling, let alone approve sweeping tech regulation.

GOP infighting, particularly at the committee level, has been driving more recent deadlock on social media legislation in the House, said a child safety advocate who has met with multiple lawmakers’ offices.

Many lawmakers are vain and would prefer not to allow other colleagues to claim credit for progress on an issue, the advocate said, requesting anonymity to describe closed-door conversations.

Weiss and Kovacevich both agreed that pride can be a significant barrier to getting things done.

“A lot of times,” Kovacevich said, “one of the dynamics behind the scenes is that senators often say, ‘I’m not going to let that rival bill move unless my bill moves.’ And I think that’s an underappreciated reason for why legislation doesn’t happen.”

“Ego is to Washington as sunshine is to a day at the beach,” Weiss said.

Also responsible are congressional leaders such as Senate Majority Leader Chuck Schumer or House Speaker Mike Johnson, who play important roles in setting the legislative agenda.

In the past, Schumer has said he will only allow Senate floor votes on bills that have a firm 60 votes to pass and avoid a filibuster. And that can be a significant obstacle for bills that lack enough of the right support.

“You don’t bring up bills where you know you’re going to lose the vote,” said Weiss, former House Speaker Nancy Pelosi’s chief of staff from 2017 to 2019. “That is not leadership.”

A Schumer spokesperson told CNN Thursday that children’s online safety legislation is a priority for the majority leader.

“While we work to pass the supplemental and keep the government funded in the coming weeks, Leader Schumer will continue to work with the sponsors of the online safety bills to ensure the necessary support,” the spokesperson said.

A spokesperson for Johnson didn’t immediately respond to a request for comment.

Consequential policy differences

Lawmakers and consumer advocates alike say it is past time for new laws holding tech companies accountable. But what that means in practice is far squishier.

Even when lawmakers can agree on what the problem is, they often disagree on how to solve it, creating a smorgasbord of half a dozen or more social media bills floating around Congress.

A key example of this dynamic is what to do about Section 230, the federal immunity law that protects companies from lawsuits over user content or content moderation decisions. While plaintiffs may attempt to sue the platforms, Section 230 lets companies ask judges to toss out the suits at an early stage, and courts have interpreted the law to provide broad liability protections to all websites.

Members of both parties have villainized Section 230 but for different reasons: Conservatives say it lets social media companies censor right-wing views with impunity, while Democrats say it blocks accountability for the spread of hate speech, election lies and health misinformation.

Because the two parties come at the issue from opposite perspectives, so do their policy prescriptions — creating a fundamental inability to reconcile.

Other bills ask the public to make difficult tradeoffs, such as giving law enforcement greater power to surveil US citizens in the name of protecting kids online — or giving attorneys general the power to decide what content is too dangerous to show to kids, which LGBTQ advocates warn could be abused to target them.

Some proposals simply cannot pass due to possible constitutional risks, said Stephen Balkam, founder of the Family Online Safety Institute. Unlike other countries that lack First Amendment protections for speech, the United States cannot pass laws forcing tech platforms to “speak” in certain ways and cannot restrict Americans from accessing lawful content, even if it may be distasteful or objectionable.

“There’s an awful lot of legislation that just simply can’t pass constitutional muster,” he said.

“Part of the problem is that solutions that sound straightforward, like ‘just censor all the bad content,’ are more appealing as sound bites for TV than actual, thoughtful regulations,” said Evan Greer, director of Fight for the Future, a digital rights advocacy group.

Tech companies and consumer groups do agree on one thing: Congress should pass a national privacy law regulating how consumer data can be collected, used and shared. That would be a huge down payment on a future social media law, said Balkam. But even that proposal is still subject to many of the same dynamics that make social media regulation hard.

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