The beginning of a new year is often a time for reflection and prediction. Technology continues to evolve in ways that improve the lives of consumers and has quickly become so commonplace that we either forget what life was like before or look back on it with nostalgia.
With this approach in mind, let’s look at some of the key takeaways in tech policy in 2023 and some likely new or continuing tech policy conversations in 2024.
Three Reflections on Tech Policy in 2023
- The courts have remained strong on the First Amendment in the context of online speech.
Numerous policies to limit speech online have been introduced, particularly at the state level. Many of these policies initially appear to be well‐intentioned on issues such as protecting children online, but often would have dire consequences for freedom of speech more generally. Additionally, 2023 saw the targeting of specific platforms for speech in attempts at both a state and federal level to ban popular social media platform TikTok for all users.
Despite the concerning trends towards laws that would likely violate the First Amendment, the courts have held to constitutional principles, issuing preliminary injunctions and emphasizing the importance of speech in the online context in various rulings. This included injunctions against California’s Age‐Appropriate Design Code and Montana’s TikTok Ban. Additionally, the courts are also holding the government itself to account for its censorship by proxy against private tech companies.
In 2023, we wrote a great deal about this and selected articles are below:
2. Artificial Intelligence is becoming increasingly the focus of tech policy.
Last year was marked by a growing interest from both the general public and policymakers regarding artificial intelligence. While AI has been a part of our lives for far longer than the average consumer may realize, the launch of products like ChatGPT and AI add‐ons to popular services like Microsoft’s Bing and Google search made AI seem more present than ever before.
This new opportunity also saw many policymakers call for regulation around the world, and there were many pessimistic outlooks on the new technology. As we discussed in our writings throughout 2023, however, the tradeoffs of a heavy‐handed regulatory approach could have negative consequences for the plethora of beneficial applications, and the light‐touch regulatory approach the US has traditionally taken should be adaptable to this new, disruptive technology.
The year 2023 was just the start of such debates. AI is likely to feature heavily in the conversations around tech policy in 2024, both on its own as well as in conversations around ongoing topics such as competition, privacy, and speech.
3. Courts are also rejecting attempts to shift the focus of antitrust away from the consumer welfare standard and recognize the continued competitive and dynamic nature of the tech market.
The year 2023 saw many actions filed against some of America’s leading technology companies alleging violations of competition laws. Many of these cases were based on presumptive theories of harm or other policy goals from agencies rather than the more objective basis of the consumer welfare standard. However, courts and judges repeatedly rejected these theories. Instead, innovation—such as AI and new social media platforms—have yielded competition in ways that we couldn’t predict even a year or two ago.
Selected articles on antitrust in 2023 include:
Three things to watch (or continue to watch) in 2024
- The impact of European and UK tech policy on Americans and American companies.
Increasingly, some of America’s leading technology companies find themselves the target of foreign regulations that appear to be designed to directly apply to these US companies in the absence of those countries having their own leading technology companies. With the Digital Services Act, for example, a growing body of rules and regulations could chill free expression well beyond Europe’s borders, and provide cover for more authoritarian regimes looking to clamp down on free expression. It may feel a bit like alphabet soup sometimes, but this growing “Brussels effect” is likely to increasingly impact not only American companies, but American consumers, as well as global innovation and free speech.
This year will likely see further discussions of tech policy abroad that could impact not only American companies but all internet users’ experience. The AI Act will certainly lead to further discussion of various approaches to AI regulation. The post‐Brexit UK is also increasingly acting on technology policy issues from the privacy and speech concerns in the Online Safety Bill to a “big is bad” presumption around competition policy proposals, including the DMCC.
For more information on where we’re starting this year, here are some of our relevant articles from 2023:
2. The risk of a state patchwork in tech policy.
States have been considered the laboratories of democracy and federalism often provides more options for policy; however, in tech policy, a growing state patchwork risks splintering the internet and particularly raising potential barriers for smaller innovators and entrepreneurs who may not be able to afford to comply. A concerning state patchwork is already emerging in the data privacy space with many laws in effect or soon going into effect, but states are also acting on issues such as content moderation, artificial intelligence, and online safety that could have impacts on speech and privacy well beyond their borders.
Here’s some of what we saw in state tech policy in 2023:
3. What happens at the Supreme Court and what it means for the future of tech policy.
The Supreme Court has a higher‐than‐average number of cases in 2024 relating to technology policy and particularly the issue of online speech. The most notable are the cases brought by NetChoice and CCIA against the Florida and Texas content moderation laws. The court will also consider cases involving “censorship by proxy,” or the pressure government actors have asserted on private companies, as well as a case further exploring the nature of public officials’ social media profiles as spaces for constituent interactions and the issue of blocking constituents. These cases are likely to raise attention about Section 230 again but are all better understood as issues of the First Amendment. These decisions are likely to have significant consequences for users, platforms, and our understanding of free speech online.
But other cases may also produce a significant impact on the future of technology policy. Particularly those considering agency deference. While the US has so far avoided calls for a specific technology regulator in its bureaucracy, agencies such as the Federal Trade Commission (FTC) have often sought to regulate emerging technologies.
In many cases these actions have extended from an agency’s own interpretation of its authority and not from a direct delegation allowing them to have authority over a technology or issue from Congress. As such, questions of administrative law before the court this term are likely to impact many of the agency actions targeting tech companies or seeking to regulate technology more generally.
Some of our writings on these upcoming cases can be found here and we also recommend the filings by Cato’s Center for Constitutional Studies: