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Sunday, June 23, 2024

The End of Roe Will Spark a Digital Civil War

Over the past 10 years, the primary threats to US internet freedom have come from abroad, as countries like China, Russia, and India have erected barriers to the flow of information. In the wake of the Supreme Court’s decision overturning Roe v. Wade, however, the biggest threat to a borderless internet now comes from within the United States.

Already, state legislatures are laying the groundwork for digital secession that will carve up the rights that are now commonplace for internet users. We are on a path to a digital civil war, where blue states and red states create different rules to govern the internet, with conflicting laws on speech and data privacy. And it will be a compliance nightmare for platforms and users alike. The end result will be worse products, more concentration in the tech market, and reduced rights online.

The battle lines are already being drawn. In South Carolina, for example, the Republican legislature is considering a bill that would criminalize “hosting or maintaining an internet website … that provides information on how to obtain an abortion.” Democrats, on the other hand, are trying to stop platforms from censoring information on how to obtain a lawful abortion. Senators Amy Klobuchar and Elizabeth Warren wrote a letter to Meta expressing concerns about the company’s removal of abortion-related posts.

Republicans across the country are seeking to ensure that states will be able to access data from tech platforms that will help them prosecute cases under state law. Democrats, meanwhile, are pressuring companies to resist these same data requests. In July, a group of Democrats wrote a letter to Oracle and Amazon Web Services seeking clarity on how the companies planned to protect data that could be used in state prosecutions. Other Democrats have focused on how data brokers might sell the location data of people who visit abortion clinics to law enforcement authorities. And in September, the California legislature passed a law that will prevent companies in the state from disclosing information in abortion-related investigations by out-of-state law enforcement authorities.

All of these legal maneuvers will create fundamentally different rights for internet users based on the state they live in. Imagine taking a flight from New York to Florida. While you’re on the runway, you might post a video on Twitter, but find that you can’t see your tweet or comment on it when you land. Or the private data you stored on your phone in New Mexico might have to be turned over to law enforcement authorities after you drive into Texas. When you travel across state lines, your rights online—and the risks you face from what you click on, what you post, and how you store information—will change.

The fear of a balkanized internet has always been that it would undermine universal human rights like freedom of expression, reduce economic and social mobility in countries that cut themselves off from the rest of the internet, slow down innovation, and reduce competition. As Freedom House has documented in its annual State of the Net report, those fears have become reality in places like China, Myanmar, and India. If this balkanization occurs within the United States and the challenges of legal compliance magnify for both companies and users, the fragmentation will likely erode rights here as well.

Tech platforms will tangle themselves into a rat king trying to enforce their terms of service across states with different legal requirements. If a user posts something legal in one state and illegal in another, How does a platform decide whether the post can stay up? What if one state government requires platforms to disclose the contents of a text message exchange, and another state government prohibits a platform from providing that data? If two people from different states communicate with each other online, and the laws of the two states conflict, which law applies?

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Figuring out a way to resolve these challenges will require more than brainpower. Massive compliance challenges usually require massive amounts of money, as companies need to hire engineers to build new product features and lawyers to figure out what they need to build. Skyrocketing compliance costs are particularly burdensome for smaller companies, making it harder for them to compete with larger platforms. The tech sector will become even more concentrated.

From fuel efficiency standards to marijuana policies, several sectors beyond tech have faced a patchwork of state laws that present compliance challenges. But the post-Dobbs state-by-state regulations on privacy and speech are likely to have a broader and deeper impact. Stringent fuel efficiency standards in California don’t prevent drivers in Michigan from buying cars. And while different marijuana laws present a range of challenges, they do not create conflicts of law, where one state prohibits conduct that another state requires.

In theory, the most sensible savior to avoid the coming digital civil war would be Congress. Enacting a federal law could ensure that users in all 50 states have access to the same basic online rights, since federal law would preempt any inconsistent state laws. Sadly, this is unlikely. Congress has been flat-footed in tech policy, unable to set out clear, modernized federal rules in areas like privacy, antitrust, and political advertising. A conflict rooted in different visions of abortion rights will make it even more difficult for a polarized Congress to find a path to sensible policymaking. If digital secession begins, members of Congress might hold hearings and tweet their frustration, but they’re unlikely to enact new policy to preserve our digital union.

The most effective protection against a digital civil war is likely to come from courts. Judges will scrutinize state laws to ensure that they comply with the First Amendment and the Fourth Amendment, and they will strike down state laws that are preempted by existing federal laws. For instance, judges will likely find that Section 230, which immunizes tech platforms from being held liable for their users speech, preempts some efforts by state legislatures to make platforms liable for hosting abortion-related content.

Whether the judiciary will serve as an effective bulwark against digital secession is not yet clear. What seems almost certain is that the tech policy battles that lie ahead will be vicious, and will produce even deeper fissures in communities throughout America.

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