Despite its journalism-centric billing, the conference offered a range of discussions on how to update the regulation of US communications markets
Reflecting on the health of the US media ecosystem
On 27 June 2024, the Open Markets Institute and the Guardian US hosted a conference on Fixing the Information Crisis Before It's Too Late (For Democracy). The event, which featured public officials, civil society leaders and media industry representatives, was billed as a conversation on impacts of online platforms and the broader digital economy on journalism and traditional media ecosystems. Despite its journalism-centric agenda, panellists covered a range of topics, including the application of ‘common carrier’ requirements to platforms, regulating the resilience of cloud infrastructures and preparing to regulate the future of the US telecoms sector. Conversation also returned repeatedly to subjects like disinformation and the 2024 US elections and the regulation of AI.
The Supreme Court’s NetChoice decision appears to have dismissed the (controversial) possibility of common carrier regulation for online platforms
In a panel on platforms “manipulating speech and information,” speakers discussed tensions between content moderation, online safety and free speech, including covering the US Supreme Court (SCOTUS) case Moody v. NetChoice, which was decided on 1 July 2024. The NetChoice case centred on state-level laws in Florida and Texas that banned social media platforms from discriminating between users’ speech based on its content. These laws would have largely prevented platforms from conducting content moderation in the same form. While SCOTUS did not rule on the merits of the case due to a lack of evidence, the court did state that activities including content moderation or algorithmic curation are forms of speech undertaken by platforms that must be protected from government interference, making it unlikely that these laws will be allowed to stand in further proceedings. Though the NetChoice case was decided after the event took place, it still provided a context for panellists to discuss common carrier requirements for platforms. Tara Pincock (Legal Counsel, Open Markets Institute) argued strongly in favour of common carrier principles for platforms like those outlined in the Texas and Florida laws, drawing comparisons with the telecoms and postal sectors. Mary Anne Franks (Professor, George Washington University Law School) was critical of this idea and noted that a more measured approach to improving online safety would be to reform Section 230 of the Communications Decency Act, which protects platforms from liability when hosting user-generated content. Franks and Zephyr Teachout (Professor of Law, Fordham University) both recommended that Section 230 be amended so that platforms can be held liable for any content they promote or monetise within algorithmic feeds.
Solving the problems of the US media sector requires broader interventions into communications markets
In a slightly surprising shift, conference panellists also discussed topics related to network infrastructure in the telecoms and cloud sectors. In addition to disclosing her favourite spectrum band (3.5GHz), Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel argued for an update to the Telephone Consumer Protection Act to better support the regulator’s work on scams and fraud. Rosenworcel also discussed how the FCC is approaching AI, including how the regulator could use AI to support dynamic spectrum access and to identify call patterns when policing robocalling. On cloud, Justin Sherman (Founder and CEO, Global Cyber Strategies) emphasised the importance of the cloud layer to the broader network stack and suggested that improved resilience in cloud could be achieved either through designating cloud services as critical infrastructure or through requiring other critical infrastructure sectors to raise their standards for cloud service procurement. John Pendleton (Nonresident Scholar, Carnegie Endowment for International Peace) advocated for transparency requirements for cloud providers on their resilience planning, as well as participation in emergency response exercises with government agencies. Karina Montoya (Senior Reporter, Center for Journalism and Liberty) made the boldest recommendation for the divestiture and regulation of cloud services as a public utility, which was dismissed by the other panellists. Though the event was billed as a look at America’s media ecosystem, the added focus on network infrastructures gave the impression that the harms facing the industry, including disinformation and the financial insolvency of media outlets, could not be mitigated without broader interventions into US communications markets.
