Lawmakers continue to embrace incoherent tech policy

As Congress continues its march to “rein in Big Tech,” some lawmakers seem unaware of how their stated goals conflict with each other. Members want kids to be safe online and they want competition. But their current proposals would accomplish neither of those goals, while simultaneously making each one more difficult to achieve.  

It appears those advocating for increased tech regulation are more interested in notching a “win” against certain tech companies than implementing structurally sound policies. Democrats and Republicans have come together on a number of these proposals, showing that bad ideas can be bipartisan too.

Congress is considering legislation that they hope will enhance online safety for children. Sen. Marsha Blackburn (R-TN) has reintroduced her Kids Online Safety Act (S. 1748), also known as KOSA, that would impose a “duty of care” on covered platforms. That duty would mandate that platforms design and operate their services to prevent “foreseeable harms” to minors like depression or anxiety. While KOSA attempts to tailor its language towards design features, its real-world application would likely run headfirst into First Amendment protections.

Sen. Mike Lee (R-UT) introduced the App Store Accountability Act (S. 1586), which would require covered app stores to verify the age of users “to ensure proper parental consent is achieved.” Advocates for the App Store Accountability Act are riding high since the Supreme Court handed down their decision in Free Speech Coalition v. Paxton, holding that an age verification requirement attached to obscene, pornographic online material is afforded only intermediate scrutiny. However, age verification mandates directed at apps more generally will likely face a higher constitutional hurdle, so their celebration might be premature.

But Sens. Blackburn and Lee aren’t just worried about kids’ online safety. They’re worried about competition too. Alongside a group of Democratic senators, they have reintroduced the Open App Markets Act, an antitrust bill that seeks to increase competition among apps, app stores, and alternative payment systems. The Open App Markets Act would essentially mandate platforms to permit “sideloading,” where a user can bypass a platform’s integrated app store. The legislation would also allow developers to bypass a platform’s payment system, and the 30 percent fee associated with using it. 

Ironically, both KOSA and the App Store Accountability Act are anticompetitive, as they increase the cost of doing business for covered platforms and make it harder for smaller platforms to compete. And the Open App Markets Act makes it easier for kids to bypass kids’ safety mechanisms, which in turn makes it easier for them to access content that ordinarily would be moderated by platforms covered by KOSA and the App Store Accountability Act.

Further, the App Store Accountability Act would impose significant burdens on covered app stores to verify users’ age and do so while maintaining user privacy. It would increase the cost of doing business while the Open App Markets Act would make it easier for third-party developers to free ride on platforms’ infrastructure without financially contributing to it. Sen. Mike Lee, sponsoring both bills, seems eager to tell companies to climb a mountain, but not before hobbling their legs.

Ultimately, effective tech policy demands coherence. Yet, Congress continues to pursue a collection of legislative proposals that are not just flawed, but fundamentally at war with one another.