There is a lot of data going around the Internet, and with that comes a host of harms from cyberbullying to information leaks to the ability to spread falsehoods. For the most part, these problems are left unaddressed by formal regulations, and are instead regulated through social norms.
To tackle these issues, the government must be able to regulate online services with the right tools. Existing systems of judicial scrutiny and sector-specific legislation have struggled to keep up with technological and market change, and in the absence of regulation, consumer harms have built up, predatory practices have become standard business practice, and dominant players have entrenched themselves.
This proposal aims to rectify these problems with the creation of a new regulatory category designed for online services. Distinct from the existing category of “telecommunications infrastructure,” this tier would encompass services offered in the application layer of the Internet stack, such as web hosting, e-commerce platforms, app stores, media-sharing services, and data analytics. It would also include infrastructural services that provide legal content, but excludes telecommunications or networking infrastructure lower down the stack. This tier would also allow for greater regulatory stability and dedicated intermediary liability protections separate from Section 230 in the event that it is amended, while providing baseline freedom of expression protections for legal online content.
This proposal would also empower regulators with significantly increased investigative and oversight powers, as well as referral authority to bring potential illegal conduct to the attention of other agencies. In addition, it would create an affirmative obligation for online services to protect civil rights and prohibit their activity that violates those rights, including through disparate impact.
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