Republicans and Democrats have found common ground in identifying concerns — in what some call a “tech lash” against dominant social media and e-commerce behemoths. While common interests would seem to drive legislation closer to enactment, federal legislation remains elusive.
States are stepping in and taking action. A state’s jurisdiction may be limited to its physical borders, but its laws can have broad national effects, particularly when a state seeks to regulate Internet-based content.
Why Congress is Stalled
Enacting federal technology legislation is challenging due to structural and political hurdles. The US bicameral legislative system is cumbersome, the Senate and the House must follow multi-step processes: bill introduction, subcommittee assignment, possible subcommittee debate, or stagnation leading to bill termination. If advanced, full committee approval follows, often with additional hearings and amendments. If both chambers pass a bill with any wording disparity, a “conference” aligns it before final votes and Presidential consideration, which can include a veto.
The next challenge is political. The current divided Congress, with Republicans in the House and Democrats in the Senate, complicates compromise. Yet, even with single-party control, recent years have shown elusive federal tech policy progress. Diverse industry interests hinder consensus on addressing privacy, content moderation, and other vital matters. In recent Congressional sessions, about 10,000 bills were introduced, but only a tiny portion became law, and very few had any appreciable impact on tech policy.
States Unburdened
While resembling the federal structure, most states have bicameral legislatures with a House and Senate, except the lone state of Nebraska with a unicameral setup. State legislation can move more swiftly due to smaller scope and scale, a narrower range of issues, and simplified decision-making, often supported by more efficient procedural rules.
States also pass laws quickly due to optimized political advantages. For example, 39 states have “trifecta” governments, where a single party controls the Governor’s office and both legislative houses. The ruling party does not need to cross party lines to enact legislation. Trifecta governments were responsible for 80% of state platform regulations passed in the last two years. And, unlike the federal government, most states do not permit filibusters — further lowering the burden to pass new legislation.
States Take the Lead on Tech Policy
Given the comparative ease of legislating at the state level, it is perhaps not surprising that state legislatures have been the fulcrum of policymaking in the tech arena in recent years.
Privacy
States, frustrated by the lack of federal GDPR-like laws, have enacted privacy regulations. The CCPA, California Consumer Privacy Act, is the best-known example. While federal lawmakers debated draft bills and held 60+ hearings, California philanthropists drafted and gathered signatures for a ballot initiative. Surprisingly, the CCPA bypassed state legislators and was directly passed by voters.
Today, the CCPA forms the basis of US data privacy legislation. Copycat bills are in 11 states, likely expanding to Ohio. These bills share similarities but differ in execution timelines, posing complex compliance challenges. Besides comprehensive privacy frameworks, targeted laws like Illinois’ Biometric Information Privacy Act, to compel changes, risking substantial liability. Meta’s $650 million settlement highlights this. Maryland and Mississippi introduced similar biometric privacy bills, and more states may follow suit.
Content Moderation
As federal legislators debate social media legislation and whether to eliminate or pare back liability protection afforded under Section 230 of the Communications Decency Act, some states moved forward aggressively with content moderation laws, though their fate remains uncertain in light of pending First Amendment challenges.
Texas passed an “anti-censorship” bill (HB 20) preventing large online platforms from removing users or user content based on viewpoint. Florida passed a similar anti-bias bill (SB 7072). Both bills were challenged as unconstitutional and eventually enjoined by federal courts. The Supreme Court has yet to weigh in on whether social media platforms may be required to ensure balanced views on their platforms, or whether such mandates impermissibly infringe their editorial discretion. New York’s S 4511A requires social media networks to maintain hateful conduct reporting mechanisms S 4511A. California’s Social Media Content Moderation Law AB 587 requires social media companies to post terms of service that meet certain format, language, and content requirements.
Antitrust
U.S. legislators seemed poised to pass a comprehensive antitrust reform bill, the American Innovation and Choice Online Act (AICOA), which stalled last congressional session but has been reintroduced and has gathered momentum. While Congress holds hearings and debates amendments, states will continue to move forward as proactive participants in antitrust enforcement. New York has taken the lead, where legislators introduced — but did not pass — a sweeping overhaul of state antitrust law in the last session. State attorneys general continue to enforce antitrust laws in court.
Artificial Intelligence
Congress is focusing on artificial intelligence, particularly after ChatGPT’s public debut. The Biden Administration responded with executive orders and an AI Bill of Rights blueprint, but comprehensive federal legislation is still missing. States have pressed forward and introduced 144 measures with the term “artificial intelligence” in 33 states since early 2023. Among these, 30 bills significantly address AI governance and ethics issues. In 2022, at least 17 states introduced AI bills, and some were enacted in Colorado, Illinois, Vermont, and Washington.
California leads the way with four AI bills. SB 313 establishes the California Office of Artificial Intelligence for state agency guidance. SB 721 forms a “California Interagency AI Working Group” for AI study and report production. AB 302 mandates listing high-risk automated decision systems for state agencies and delivering a report. AB 331 requires AI deployers to conduct annual impact assessments on their products.
Massachusetts made its mark on the need for AI legislation and the concern of artificial intelligence produces with its bill titled “An Act drafted with the help of ChatGPT to regulate generative artificial intelligence models like ChatGPT,” which, as its name states, was created by ChatGPT.
Congress Needed for Effective Policy
Individual state legislation is not the most effective solution to a lack of federal comprehensive technology policy. The existence of varying state regulations can lead to inconsistencies and lack of uniformity, creating confusion and compliance difficulties. A patchwork of regulations can hinder a government’s ability to implement comprehensive national solutions, as state laws can represent a siloed view on a technology policy issue, rather than a holistic national view.
Despite the challenges within the US legislative process, Congress must proceed and enact a comprehensive technology policy to encourage responsible technology use. A balanced and coordinated approach between states and the federal government can achieve more coherent and effective policy outcomes on a broader scale.
Hillary Brill is the founder HTB Strategies, a legislative advocacy and strategic-planning practice with a diverse client mix that includes Fortune 500 companies, public interest & academic sectors. She is a Senior Fellow at Georgetown Law’s Institute for Tech Policy & Law where she teaches her novel curriculum on Technology Policy Practice, Internet e-commerce, and Copyright Law.
Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
