What will the new Task Force do?
Specifically focussed on "technologically-facilitated gender-based violence", the White House has explained that the new Task Force will produce recommendations for relevant stakeholders (including the government, schools and technology platforms, amongst others) on: "increasing support for survivors of online harassment and abuse; expanding research to better understand the impact and scope of the problem; enhancing prevention, including prevention focused on youth; and strengthening accountability for offenders and platforms".
The White House has also set out various objectives for these recommendations to achieve, including to: improve coordination among executive departments and agencies; expand data collection on the costs and consequences of this kind of violence; increase access to support for survivors; develop programs to address the disproportionate impact of online abuse targeting prominent women and LGBTQI+ individuals; evaluate the adequacy of the current legal framework; and identify opportunities to address the issue in the US' foreign policy.
How does this compare to the EU and UK proposals?
By comparison to the UK's OSB and EU's DSA proposals, this latest development from the US looks surprisingly limited in scope. Whereas the new due diligence obligations under the DSA would cover all "illegal content" and the OSB would include an even broader category of "harmful content", the new Memorandum limits itself only to "troubling gender-based" material. Here it appears the US has taken note of the difficulties UK has faced in trying to create a definition of "online harms" which is balanced against the freedom of speech, and chosen to avoid the issue.
Similarly, as regards the targets of the intended reforms, the latest Memorandum is notably vague. As the Commission makes clear in its latest press release on the DSA, the focus of the EU's attention is on "'too big to care platforms" ("with size comes responsibility - as a big platform, there are things you must do and things you cannot do"). In the same vein, the OSB has squarely placed responsibility for cleaning up online discourse on the Big Tech companies - search engines and social media platforms that are defined in the OSB as providing "user-to-user services". By contrast in the US, commentators have noted that, by casting the net of relevant stakeholders so broadly, the White House seems anxious not to set itself in opposition to the major tech companies.
The same goes for the various enforcement mechanisms under the regimes. Whereas the EU and the UK are already developing robust enforcement mechanisms (with fines for companies up to 6% of global annual turnover under the DSA and 10% of global annual turnover under the OSB), the US Memorandum does not even mention enforcement, beyond some vague commitments to "enhancing accountability". Here again, there seems to be a certain trepidation on the part of the White House not to associate itself with any existing concerns around tech-led "censorship".
Perhaps it is still too early to make an assessment. Section 5 of the Memorandum gives the new Task Force until December 2022 (180 days from the date of the memorandum) to submit an "Initial Blueprint" for the proposals, and a further 12 months after that to prepare an update and "1-Year Report". It remains to be seen precisely what the details of the US' reform agenda will entail; and whether they may end up being more extensive than these initial indications would suggest.
Certainly, this puts any legislative change significantly behind those of the OSB and the DSA – the former initially expected to pass early next year (according to Ofcom's latest "roadmap") (but now delayed following the UK political upheaval), and the latter due to enter into force 20 days after publication in the EU's Official Journal, in autumn this year.
Nevertheless, even if this puts the US somewhat out of step with European counterparts, it would at least appear to put them all on a similar path. Gone are the days when it was hoped that industry self-regulation might allow these issues to take care of themselves, and government intervention could be avoided. Instead, what seems to be differentiating the Americans and the Europeans today is merely the speed and breadth of what government intervention is needed.
For most online businesses, the UK and EU proposals will be the immediate priority in terms of compliance management. The new obligations under the DSA and the OSB are extensive and will require considerable time and resource investment. Businesses will therefore want to prioritise understanding their obligations under the DSA and conducting an online safety risk assessment for the OSB. However, this latest White House announcement suggests that businesses will now also need to keep in mind future US regulation as well – as the new Task Force's proposals may not be too far behind.
With special thanks to trainee solicitor, James Russell, co-author of this article.
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