The U.S. government should not regulate social media. It should stay far away from Facebook, Twitter, YouTube, Instagram and the rest. Any regulatory effort might well violate the First Amendment. Even if it turned out to be constitutional, it would squelch creativity and innovation in the very places where they are most needed.
Until recently, I would have endorsed every sentence in the above paragraph. But as Baron Bramwell, the English judge, once put it, “The matter does not appear to me now as it appears to have appeared to me then.”
The argument for targeted forms of federal regulation, respectful of the First Amendment, might not yet be decisive – but it is getting stronger every day.
The first reason, and the most fundamental, involves democracy itself. Everyone now knows that foreign governments, most notably Russia, have been using social media aggressively to promote their interests.
Before the 2016 election, Russian agents worked hard to divide Americans and influence their votes. They succeeded in reaching 126 million Facebook users – and they published more than 131,000 messages on Twitter.
Whatever the impact of Russia’s efforts, foreign interference with the operations of our democracy is intolerable. Because other nations, and not only Russia, have a lot to gain and growing technological capabilities, the problem is likely to get worse.
True, social media can act on its own to reduce the problem. Facebook has taken down hundreds of pages linked to Russian propaganda efforts, and there is some evidence that its corrective measures are succeeding.
But because the stakes are so high, federal regulation is not hard to justify. And while foreign interference is the most obvious problem, it is worth starting to explore what, if anything, to do about all uses of “dirty tricks” on social media – as, for example, through the creation of fake pages and accounts to spread known falsehoods to achieve electoral goals.
The second problem involves consumer protection. In view of recent abuses, it is worth considering whether to adopt some kind of user’s bill of rights, designed to protect against unwanted or unknowing disclosure of personal data. Prominent social media platforms already tell users how their information might be used, but those disclosures are not exactly transparent.
The third problem involves the antitrust laws. Is Facebook a kind of monopoly? If so, should it be regulated as what economists call a “natural monopoly,” which exists when the market can efficiently support only one supplier (as in the case of electric utility providers)?
These are hardly simple questions, and they are complicated by the fact that Facebook does not charge its users. But the sheer size of the platform – increased by Facebook’s acquisition of Instagram and WhatsApp – means that regulators need to consider, more carefully than they have done thus far, how antitrust law might apply to situations that were once unimaginable.
In some ways, the rise of social media is analogous to the rise of radio and television, which inspired the original creation of the Federal Communications Commission in 1934. Importantly, the FCC was established as an “independent” agency.
That means unlike the heads of Cabinet departments, its five members are not supposed to be subject to the day-to-day control of the White House. Nor can they be fired simply because the president disagrees with their decisions as a matter of policy.
With respect to communications, a degree of independence makes sense. It would be dangerous if any president could grant broadcast licenses to his friends and deny them to his enemies — or if he could oversee regulatory decisions involving companies that offer information, and points of view, whose dissemination he might abhor.
These points justify a firm conclusion: If federal officials are going to regulate social media, they should be independent of the president. The simplest course would be to give new authority to the FCC rather than to a whole new agency, though the latter option also deserves consideration.
In this context, there should be a presumption against mandates and bans, and the most important regulatory tool might be a modest one: transparency. For example, regulators might be authorized to compel social media providers to provide periodic public reports, offering an account of exactly what they are doing to protect consumer privacy or to reduce threats to democratic processes.
Regulators should also be given the power to scrutinize existing efforts to make sure they are sufficient – and to require remedial steps if they are not.
These proposals are meant as an invitation to discussion, not as a blueprint. But it is increasingly clear that in view of their complex role in society and their massive power, social media platforms can jeopardize both democratic and economic goals. Now is the time to ask: What are we going to do about that?
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”