How to combat social media platform power

JB

Following Donald Trump's election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over 250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government.

What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government?

Voters can vote politicians out of office. But they cannot do the same with today's robber barons of tech. People angry at Musk have sought to boycott Tesla products. But it is harder to boycott YouTube or Meta, and X retains its power over public discourse even if Tesla loses sales.

Exit is another strategy. New platforms like Mastodon and Bluesky have sprung up, but they remain small in comparison.

The power of the largest social media platforms arises from network effects. People won't leave the platform because so many other people use it, creating a collective action problem. This collective action problem keeps the largest platforms rich and powerful, and helps them maintain their power over public discussion and politics.

In my recent article on Moody v. NetChoice, I pointed out that Florida and Texas took the wrong approach when they sought to regulate the power of tech platforms. They tried to regulate the platforms' content moderation and recommendation systems but did nothing to address the deeper sources of platform power. Instead, they should have enacted pro-competition laws that sought to counteract the power of network effects:

First, governments could impose structural regulations that require large social media platforms to offer end users the choice to use “middleware.” Middleware companies provide alternative content moderation and recommendation services. Platforms would still moderate and recommend content as before, but end users could also choose different companies to perform these tasks.

This kind of structural regulation would create a market for third party middleware companies to connect with the largest platforms. It would allow end users whose speech would otherwise be blocked or demoted by a platform to reach willing listeners that subscribe to a middleware service with different rules and norms. Finally, it would allow end users to enjoy the benefits of the large communities that large platforms create without being locked into a single service for content moderation and recommendations.

A second structural solution is to require large social media platforms to be interoperable with other social media platforms. This means that they would employ common technical standards for sharing, interpreting, and presenting data. Common technical standards would not require platforms to select, present or curate data in any particular way. Any platform that used these common standards could receive content posted on other platforms and share content with other platforms while presenting and curating content however it liked. This is how email works today. People using different email providers can send and receive messages to each other because the providers use common standards.

Like middleware solutions, an interoperability requirement would give end users all the benefits of belonging to large digital communities; and they could also communicate with people who belonged to other social media platforms. Interoperability would lower barriers to entry for new social media platforms that might have trouble gaining new users because network effects keep people on existing platforms. Finally, interoperability could also create a market for third-party content moderation and recommendation systems that would allow end users to escape the largest platforms’ control over what they say, see, and hear.

The whole point of interoperability rules is that they allow end users to maintain the benefits of network effects while reducing the governing power of large tech platforms.

If a blue state like New York or California wanted to counteract Musk's (or Zuckerberg's) power over public discourse, they should pass an interoperability or middleware law and let market forces take their course. People would still be able to speak to each other but the platforms would be far less powerful and politically influential.

These laws are good public policy because they promote competition and prevent a small handful of incredibly powerful people from controlling what people can read or say. They have the additional advantage that they help combat the increasing inequality of economic and political power that emerged from the platform economy.

Platforms will not take such laws lying down, of course. As in the NetChoice litigation, they will attempt to get federal courts to strike the laws down as unconstitutional. The difference is that this time the First Amendment arguments against platform regulation will be much weaker. As the Court explained in Moody, citing Turner I and Turner II, legislatures may pass content-neutral pro-competition laws without violating the First Amendment rights of social media companies. Middleware and interoperability mandates fall into this category.

Because these laws would be passed by state governments, the platforms still have legal arguments based on the Dormant Commerce Clause and federal preemption under federal telecommunications law (including section 230). But the arguments against the constitutionality of such pro-competitive policies are hardly clear cut. These are not like state laws that seek to protect in-state businesses from out-of-state competition. Nor are they laws that attempt to hinder the channels of interstate commerce and communication. Quite the contrary, interoperability laws are pro-competitive and designed to free up commerce and lower barriers to entry. Nor do these laws attempt to hold platforms liable for the speech they host in contravention of section 230. Platforms remain the same immunities they had before.

Red states like Texas and Florida chose the wrong strategy for combatting the power of tech giants. Blue states like New York and California should try a better approach that enables competition and protects end-user free expression.