What if online speech laws were different in each state?

Since the Supreme Court overturned Roe v. Wade in June, many states have been working on new laws related to digital privacy and access — or restricting what kind of information can be shared online. This trend highlights the growing disparity between states regarding what is legal online and what may be in the future.

Marketplace’s Kimberly Adams speaks with Matt Perault, director of the Center on Technology Policy at the University of North Carolina, Chapel Hill, and technology policy advisor.

He wrote an essay for Wired about what could happen if the rules about what you can say and do online differ from state to state. Perault said this type of digital fragmentation is a relatively new concept in the United States, but some people already know what it’s like. The following is an edited transcript of their conversation:

A photo of Matt Perault from UNC Chapel Hill with his arms crossed and wearing a blue t-shirt.
Matt Perault (courtesy of Hunter Stark)

Matt Perault: It is now common for many users, including Olympians or corporate executives, when traveling to a place like China to travel with a burner phone, a phone stripped of all data, because they understand the laws will be in China different than in the United States. It is not yet common to experience different laws in one state. Suddenly we will have different rights online in some states than in others. I think it’s a kind of digital civil war for me. It’s a form of digital secession where your rights are determined by the state you live in. And we haven’t really seen that in the United States in the way I think we’re about to see it.

Kimberly Adams: I always think of mail. It’s protected nationwide. But online communication across state lines seems to fall into a different category based on what you point out here.

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Perault: So I think you are exactly right. So if Congress passes a law on these issues, that federal law would trump the state law. That would be a constitutional principle. The challenge is that Congress has not been very successful in regulating the technology sector. It’s also possible that courts are, in a way, our salvation because states cannot make unconstitutional laws. You can’t pass laws that violate the First Amendment, which protects freedom of speech. And they can’t violate the Fourth Amendment, which protects privacy. So it’s possible for federal courts to intervene in a way that ultimately protects users’ rights. But it will probably take a while before that happens.

Adam’s: Recently, South Carolina introduced legislation that would criminalize any form of online information flow about abortion. But the state governor came out and said the law would “never see the light of day.” You laugh. Why?

Perault: Well I think for a few different reasons. I mean obviously this bill is going to pose constitutional challenges. Anything that violates the First Amendment, which protects free speech, will face serious opposition in court. But I also laughed because it’s not just the federal government that’s struggling to reach consensus on what the right rules should be. The state governments will also face these challenges. The reason I see this acute threat of fragmentation is because states have tended to be more effective than the federal government at enacting technology policies. There is no filibuster at the state level, so it’s easier for the legislature to get through. And there are more states that have unitary government, where Republicans or Democrats control the entire legislature and sit in the governor’s mansion. And that makes it a little bit easier to get laws out the door. I think that’s one of the reasons we’ve seen states have been more successful than the federal government in areas like privacy and the development of state-level privacy laws.

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Adam’s: What is the role of social media companies and I guess even email providers, websites and online service providers if states continue to enact these laws that regulate the flow of information, not just within their states but across state lines?

Perault: I think it’s going to be a big challenge for tech companies. Tech companies will find themselves in the middle of this digital civil war. And that will mean your compliance costs will go through the roof. They will need to have many attorneys on hand to advise them on what laws they may be breaking and how to ensure they can comply with state laws. And this patchwork quilt between states, among 50 different possible state laws, is going to be really complicated and require a lot of expertise for them to figure out how to deal with. The challenge will be particularly acute for smaller companies, as they will have fewer resources to implement this type of compliance system.

And for smaller companies, any resources they divert from building their business and developing their products and instead into regulatory compliance will make it harder for them to compete with larger and more established tech companies. I also think it will be very difficult for the brand equity of tech platforms. I think we’ve seen over the past few years that when tech companies are in the middle on these social issues, they try to please everyone and end up pleasing no one. And when they’re caught between California and Texas trying to figure out “What law are we breaking?” And how do we navigate this narrow path where we are required to provide data from one state and we are required not to provide the same data from another state?” That’s really a challenge for tech companies to figure out how to deal with deal with this tension. And I think it’s unlikely to be favorable for many tech companies. It will be a real challenge for them to figure out how to run their business.

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Adam’s: What would this potential digital civil war look like for your average online consumer?

Perault: So I think people need to think about what legal regime will apply to them when traveling across the United States. I think this is going to be incredibly confusing for internet users. I think it’s going to present really complicated challenges that are really hard to think through to anticipate how they’re going to feel in the future. What if you not only stored your own data on your phone, but also your friends’ data? So what if messages you have with a friend could affect their own rights, and if you travel to a different jurisdiction, those messages affecting your friend’s rights could suddenly be accessible to law enforcement?

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