Sen. Josh Hawley
(R-Missouri), one of Silicon Valley's loudest critics, has proposed legislation banning some online practices that he says he believes cause “addiction.”
The “Social Media Addiction Reduction Technology Act” would prohibit large web
platforms from using an “infinite scroll,” which automatically loads content when users scroll down a page. Instead, sites would only be allowed to automatically display as much content as
a “typical user” scrolls through in three minutes. After that, sites would have to wait for users to affirmatively request more material before loading it.
The bill would also
prohibit autoplay videos, but has an exception for video ads.
Another provision of the bill would limit websites' ability to award “badges” to users based on their engagement with
the platform.
The measure also takes aim at so-called “dark patterns” that manipulate users into consenting to companies' terms. Specifically, the bill would require companies to
present users with “accept” and “decline” boxes that are the same size, with the same formats and fonts.
"Too much of the ‘innovation’ in this space
is designed not to create better products, but to capture more attention by using psychological tricks that make it difficult to look away," Hawley stated Tuesday. "This legislation will put an end to
that and encourage true innovation by tech companies.”
Hawley frames his legislation as targeting addiction, but some of his proposals also appear to target features that arguably
amplify extremist voices.
For instance, YouTube's recommendation and autoplay feature has been criticized for directing users to videos that advocate white supremacy. (Last month, YouTube
said it will aggressively crack down on hate speech, including videos that promote white supremacy.)
If enacted, it's not clear the bill would survive a challenge on free-speech grounds. With
some exceptions, the First Amendment limits the government's ability to prohibit content based on its substance. But there's an argument that many provisions of Hawley's proposed bill don't target the
substance of online content as much as how the material is presented.
"There are arguments on both sides," says Blake Reid, director of the Samuelson-Glushko Technology Law & Policy
Clinic at the University of Colorado Law School. “A challenge would not be a slam dunk one way or the other.”
He says much would depend on whether website operators'
decisions regarding autoplaying or scrolling are seen as “expressive conduct,” in which case, the decisions convey a message and would be protected by the First Amendment, or
“non-expressive conduct,” which is more susceptible to regulation.
Reid adds there are also questions whether web companies' decisions regarding the presentation of content are a
form of commercial speech, which isn't always protected by the courts to the same extent as editorial speech.