3 Reasons Why the U.S. Lacks Comprehensive Social Media Regulation — and Why That's Likely to Change Soon

Social media is still in its infancy. The extent to which social media platforms require further regulation, and the form that regulation might take, continues to be a subject of vigorous global debate.

In the aftermath of the 2016 U.S. Presidential election, much attention domestically was paid to how social media platforms may have influenced the election outcome by propagating mis- and disinformation, aiding election interference, and stoking existing partisan divide.

More recently, studies have linked excessive use of social media — specifically, Facebook, Instagram, and YouTube — to adverse mental health effects on youth: Teens and young adults who frequently use social media are prone to increased anxiety, depression, loneliness, and thoughts of self-harm, as well as heightened levels of addiction and narcissism.

Barriers to Policy Intervention

Despite the growing concerns surrounding social media's impact on democracy, public health and society at large, in the United States there remains limited oversight and regulation, both at the federal and state levels, of social media companies.

There have been at least three noteworthy obstacles in the way of more stringent regulation of social media companies in the United States: Section 230, institutional barriers, and the decades-long hollowing out of the Federal Trade Commission.

First, Section 230 is a provision of the 1996 Communications Decency Act (CDA) that exempts providers of an interactive computer service from legal liability for user-generated content. It also allows platforms to moderate content as they see fit without fear of being sued.

There is broad consensus, even among the legislation's critics, that Section 230 is a bedrock of the modern Internet. Corynne McSherry, the Legal Director at Electronic Frontier Foundation, called section 230 "the most important law protecting internet speech."

Nevertheless, executives at big tech companies have used Section 230 as a cudgel to defend against any efforts to regulate their operations. In his congressional testimony, Mark Zuckerberg warned that without section 230, "platforms could potentially be held liable for everything people say." Twitter CEO Jack Dorsey has argued that weakening section 230 "could collapse how we communicate on the Internet."

Second, as political scientists have well-documented, the institutional design of America's lawmaking body — including features such as a bicameral legislature, executive veto power, and a Senate filibuster — favors policy inaction. According to Michal Minta, an associate professor of political science at the University of Minnesota, about 10,000 bills are introduced on average in a session of Congress, and only about 3% to 4% are passed.

Increased affective partisan polarization in recent years contributes to this policy "drift", or the preservation of status quo policies, even as they become poorly adapted to the present moment. Moreover, in Washington and in state legislatures across the country, the tech industry has enjoyed extraordinary cachet, thanks in part to close ties to the Obama administration, and ongoing lobbying efforts that rival those of Wall Street and the fossil fuel industry.

Finally, the Federal Trade Commission (FTC), the government agency charged with enforcing antitrust laws and protecting consumers, has been diminished in recent decades by both reductions in funding and personnel.

The decline in the FTC's capabilities has had significant ramifications for the evolution of social media companies in the United States. In 2011, the FTC passed a consent decree that bars Facebook from sharing user data without obtaining explicit consent. Yet, due to a lack of sufficient enforcement, Facebook routinely continues this practice, without recourse. In 2012, the FTC failed to block Facebook's acquisition of Instagram, a decision the agency has since admitted was a mistake.

"The Senate has a choice about whether to fully fund a new digital harms bureau now, so that the FTC finally has the resources it needs to protect Americans." — Sara Collins, Policy Counsel at Public Knowledge

Promising Political Climate

Most Americans do not yet view social media regulation as a top policy priority, particularly in the face of other pressing challenges our nation faces, from the COVID-19 pandemic to systemic racial inequality and climate change.

But in recent years, increased awareness of the abuses of big tech have centered issues like data privacy and social media regulation on the public policy agenda, and shifted public opinion. Today, a majority of Americans are in favor of new legislation governing social media activities. Last week, more than 40 attorneys general signed a letter urging Facebook to block plans for Instagram for kids. And even in Congress, there is bipartisan support for clamping down on tech giants.

Policymakers have more incentive today than in the past to regulate social media companies: passing legislation that limits social media's harms would be politically popular, and would demonstrate that Congress can function effectively in an era plagued by partisan gridlock.

Proposed Policy Interventions

A handful of bills have been drafted in the last year alone that, if signed into law, could combat the most pernicious impacts of social media, particularly on young people.

In October 2020, Congressman Tom Malinowski (D-NJ) and Congresswoman Anna G. Eshoo (D-CA) introduced the Protecting Americans from Dangerous Algorithms Act, which would hold large social media platforms accountable for their algorithmic amplification of harmful content. Children and young adults are particularly susceptible to radicalizing content they see online.

In May, Congresswoman Lori Trahan (D-MA) and Kathy Castor (D-FL) proposed the Social Media Data Act, which would require digital platforms to provide information about their advertising to academic researchers by creating searchable libraries that detail the content, targeting criteria and associated data necessary to analyze the purposes and efficacy of their advertisements.

Finally, Senators Edward J. Markey (D-MA) and Bill Cassidy (R-LA) introduced the Children and Teens' Online Privacy Protection Act, legislation to update online data privacy rules for the 21st century and ensure both children and teenagers are protected online. The bill would prohibit internet companies from collecting personal information from anyone 13–15 years old without their consent.