Regulating Big Tech – Sen. Bill Hagerty Aims to Make Big Tech Platforms Common Carriers



Senator Bill Hagerty (R-TN) has introduced a bill that takes aim at a key vulnerability of Big Tech — their increasing resemblance to common carriers.

The bill, called the 21st Century FREE Speech Act, follows a legal opinion from Justice Clarence Thomas arguing that censorship of Americans on tech platforms could be ended if they were regulated as common carriers or places of public accommodation.

For tech companies with more than 100 million monthly active users, the bill would abolish Section 230 of the Communications Decency Act, the bill that tech companies rely on to censor their users with impunity.

The bill would replace it with language that preserves liability protection for hosting third-party content (a critical protection that allows platforms to host a wide range of speech without legal risk) while eliminating the broad immunity for censorship that existed under Section 230.

While the bill allows for limited content moderation to maintain family-friendly environments, its regulation of tech companies as common carriers means that all Americans will be able to access them on reasonable, non-discriminatory terms.

The tech platforms will also have to disclose their content moderation techniques to users, meaning that platforms will not be able to create discriminatory technology without users knowing. Users will also have a private right of action against tech companies, allowing them to sue any company that violates these principles.

In an op-ed for the Wall Street JournalSen. Hagerty noted that common carriage laws have long been applied to communications technologies relied on by the American public.

As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers—such as trains or phone networks, which are essential to everyday goings-on, connecting people and information—have historically been subject “to special regulations, including a general requirement to serve all comers” without discrimination. The same logic should apply today to Big Tech.

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