TikTok’s shutdown today — however brief — marks a historic moment in Washington’s governance of the tech industry, an overwhelming bipartisan deal to shut down a popular app over national security concerns.
But the law’s seeming fragility, with an incoming president already scheming to unravel it, highlights something else just as clearly: How few tools American leaders have available to address the risks of online content.
Despite the vast size and power of platforms like TikTok, Facebook, X and others, their regulation has been largely a political sideshow for two decades. A long-overdue legislative overhaul of children’s online safety protections died the latest of many deaths in December; the Supreme Court in 2023 declined to hear challenges to the Section 230 liability shield that protects tech platforms from harms caused by content they host.
With no broad laws in place at all, it took an act of Congress, the Biden White House and ultimately the Supreme Court to take down a single app linked to China that could pose huge, if unspecified, risks to the country and its users.
The drama over the law over the past week, or even the past few hours emphasizes just what an unusual leap the whole idea represents in American law — one raising enough questions that the Supreme Court saw fit to intervene and formally uphold it.
To some tech observers, the TikTok fracas speaks to years of Washington misdirection, as Congress theatrically argues over online content while ignoring more straightforward issues that could have staved off the TikTok drama.
“For the last decade Congress has focused on content moderation, the one aspect of tech policy they are constitutionally prohibited from regulating,” said Nu Wexler, a former Senate staffer who has worked at Facebook, Twitter and Google. “Had they focused on more relevant issues like privacy and transparency, we could have had a more thoughtful and effective approach to social media.”
“Now we’re reduced to companies writing big checks and begging the next president to ignore a law,” he said.
One reason for the gap? Voters don’t seem to care. A Morning Consult poll of voters’ priorities after the November election found “regulating technology companies” dead last, trailing “building and repairing roads and bridges” and “other, please specify.” (That might change if apps start to suddenly disappear, like TikTok briefly did: A Wisconsin 19-year-old allegedly set fire to his congressman’s office early this morning in response to the ban.)
For those who watch the tech industry, the ban and its swirling controversy are now raising a new question, besides “will Trump save the platform”: Will the sense of danger be enough to force a reckoning over how Americans relate to our tech platforms? Or just a speed bump on the way to TikTok’s potential sale to a U.S. owner?
“Do we just throw our hands up and say, well, that’s the way it is, and TikTok is fine if somebody else owns it, or does this and the Elon Musk experience at Twitter make us think twice about that?” said Jeremiah Johnson, co-founder of the center-left think tank the Center For New Liberalism and author of the Infinite Scroll Substack.
Johnson is part of an ideologically diverse group of thinkers that have been taking a closer look at the relationship between Washington and tech. Some have advocated stronger action, for a long time: In the weeks before the TikTok bill passed the House of Representatives, Ganesh Sitaraman, a law professor at Vanderbilt University, argued in POLITICO Magazine that tech platforms should be regulated along the same lines as railroads or telephones, meeting a threshold of importance where they form “the foundations for modern commerce, communications and civic connections” and cannot be left simply to private governance.
“Should a single person have the power to exclude persons from services that are essential to modern commerce and social life? Should a corporation whose legal duties are to its shareholders, rather than the public welfare, have free rein even if padding their profits injures people?”, Sitaraman asked, before noting that Americans have wrangled with such thorny policy questions for centuries. (In Thursday’s Supreme Court opinion, the justices cite a 1944 opinion by Supreme Court Justice Felix Frankfurter that advised judges and lawmakers not to “embarrass the future” in applying legal rules to new technologies.)
Conservatives have been some of the loudest and most influential voices in forcing a rethink of what tech platforms owe Americans, due to their belief that liberal-leaning, California-based tech companies have unfairly restricted the speech of right-leaning Americans. That’s made Section 230 a live issue on the right, with President-elect Donald Trump’s pick to lead the Federal Communications Commission, Brendan Carr, implicitly threatening in a November letter to revoke that liability over a lack of “good faith” toward conservatives in fact-checking and moderation efforts.
Tech platforms’ freedom to moderate their platforms — one with deep roots in the history of the internet — has led to the growth of a thick, impenetrable layer of apps and platforms that mediate users’ interactions with the internet and enjoy unfettered access to their personal data.
This has remained true as the platforms grew into powers of their own — now serving, as Vanderbilt’s Sitaraman argued, as the backbone of American public life.
Barring serious regulation, some private actors have tried to find workarounds for this corporate stranglehold on the policy conversation. Jaron Lanier and E. Glen Weyl have pitched their vision of “data dignity”, which would entail compensation to users for their data. The “federation” model used by insurgent social media platforms like BlueSky gives more hosting responsibility to the user, replicating the barebones, wonky quality of the early internet.
In the U.S., guardrails around what tech platforms can or cannot do in the U.S. when it comes to algorithmic recommendation, data collection or privacy has fallen to individual states, which have had a mixed record of fending off the tech lobby and court challenges.
Globally, the primary example of regulators facing this problem head-on — without the looming, credible fear of manipulation by a foreign adversary — is in the European Union, the bete noire for regulation-adverse tech companies. European regulators are currently investigating Elon Musk’s X over whether it’s unfairly tipping the scales toward a far-right party in Germany, in violation of its Digital Services Act which expressly forbids tech platforms from doing so. Facebook won’t cancel its third-party fact-checking services there for the moment, citing potential problems with regulatory compliance. And the EU is running its own investigation of TikTok, citing potential violations of the DSA’s child protection rules.
Honest people can disagree over the fairness of the specific rules for tech laid down by Europe, or how appropriate they would be for American norms of speech or commerce. But they represent a radically different approach to tech regulation that, unlike America’s, recognizes how central and powerful technology platforms are.
Whenever American regulators have made moves in that direction, the response from the tech industry has been swift and vehement. During a discussion with the New York Times’s Ross Douthat published Friday, venture capitalist and Trump transition aide Marc Andreessen decried “the raw application of the power of the administrative state, the raw application of regulation and then the raw arbitrary enforcement and promulgation of regulation,” citing President Joe Biden’s administration’s actions on cryptocurrency and artificial intelligence.
Meta’s Mark Zuckerberg made similar comments during a recent discussion with Joe Rogan. LinkedIn’s Reid Hoffman, a key ally of the Biden administration, posted on X that outgoing Federal Trade Commission Chair Lina Khan was trying to “dismantle companies” with her antitrust efforts and called for her replacement.
The Biden administration’s shift toward a more aggressive view of tech governance assisted a widespread shift toward the right in Silicon Valley, which along with Trump’s resounding electoral win has led almost every major tech CEO to line up and fete his inauguration Monday.
Ironically, when it comes to keeping the existing status quo, tech leaders often cite the same grounds on which the U.S. is now effectively banning TikTok: competition with China, as Andreessen told Douthat “if it’s not American companies winning globally, it’s Chinese companies winning globally.”
“Winning,” in these terms, is maintaining economic dominance unfettered by European-inflected changes to the relationship between Washington and Big Tech.
Those changes are easy to make when they’re aimed at defanging a foreign adversary, as the government has deemed the Chinese government to which the ownership of TikTok is linked. But by saying it’s acceptable for American companies to operate one way, and unacceptable for a Chinese-linked company to do the same, Washington has inadvertently revealed the awkward truths and tensions that define its laissez-faire attitude toward the platforms that define our public life. Until both parties come to a reasonable accommodation regarding what they owe each other, they won’t be resolved anytime soon.
