• by Wendy Davis , Staff Writer @wendyndavis, May 12, 2022

A Senate Democrat has unveiled a bill that would create a new five-member agency to oversee tech companies.

“It's past time for a comprehensive approach to regulating digital platforms that have amassed extraordinary power over America's economy, society and democracy,” Senator Michael Bennet (D-Colorado), who introduced the Digital Platform Commission Act, tweeted Thursday.

The proposed new tech oversight agency would be empowered to investigate and regulate tech platforms -- defined as intermediaries that enable users to communicate with each other, or to interact with other companies offering goods or services.

The definition excludes news organizations and "small" platforms. (The bill tasks the Small Business Administration with determining what qualifies as a small platform.)

The bill would specifically allow the proposed Digital Platform Commission to require that tech companies use only algorithms that are “fair, transparent, and without harmful or anticompetitive bias,” and to mandate that platforms disclose their content moderation policies.

The advocacy group Public Knowledge -- which previously called for a new agency to oversee the tech industry -- praised the bill, stating that an independent regulator could “serve the public interest and foster a healthier, more competitive digital marketplace.”

It's not clear whether Bennet's proposal will gain traction in the current polarized political climate. But even if it does, the proposed bill appears likely to run into constitutional hurdles.

Among other potential problems with the bill, the First Amendment  doesn't just protect publishers' right to publish speech that's racist, sexist, or otherwise objectionable, but also the right to distribute such speech. 

Stanford Law School's Daphne Keller, who has extensively studied platform regulation, recently wrote that legislation regulating amplification algorithms wouldn't be “automatically unconstitutional,” but would “definitely face major uphill battles.”

She added that the Supreme Court addressed the issue more than 20 years ago, when Justice Anthony Kennedy wrote: “The distinction between laws burdening and laws banning speech is but a matter of degree.”