This might be a turning point in the fight for technology accountability in U.S. courts. It follows years in which lawmakers in numerous states have stepped up to protect kids from the harms of social media and limit abuses by the tech industry in areas such as privacy protections, the “right to repair” and artificial intelligence. Yet efforts by the tech industry to embed provisions friendly to their business models into international trade deals could undo much of this progress.
Tech regulation is both broadly popular and bipartisan: Three-quarters of Democrats and Republicans favor caution over speed in AI development. Nearly the same proportion of Democrats and Republicans believe that Congress should pass laws to protect consumers from AI harms before funding the technology’s development. Nevertheless, meaningful congressional action seems unlikely in the short term.
In the absence of federal lawmaking, state legislators have taken the initiative, introducing AI bills in more than a dozen states. Several of these policies — six of which have already been signed into law — require tech companies playing an outsized role in our lives to disclose algorithmic information for safety reviews or government registration.
Meanwhile, right to repair laws, such as those passed in California, Colorado, Minnesota, New York and Oregon, force manufacturers to provide consumers and independent shops with the tools and documentation to repair their devices, pushing back against the industry's planned obsolescence and anti-competitive repair restrictions.
As for kids’ safety online, California lawmakers unanimously passed the Age-Appropriate Design Code Act and Texas enacted the Securing Children Online through Parental Empowerment (SCOPE) Act. These laws mandate the sharing of algorithmic information with government officials or independent researchers to ensure children’s safety online.
On the privacy front, in addition to personal data protection laws, some states have passed policies to guarantee that our most sensitive information is secure. Montana’s Genetic Information Privacy Act, for instance, bans foreign adversaries from storing Montanans’ biometric information. In 2023, California amended its Confidentiality of Medical Information Act to restrict the transfer of sensitive medical information outside of the state.
State lawmakers have been quite busy passing these policies and fending off well-resourced lobbyists’ attacks. Yet most may not know that their bills could be at risk of legal challenges under little-known terms that the tech industry aims to include in trade deals negotiated by the federal government. For a little more than a decade, tech lobbyists have tried to convince negotiators to include so-called “digital trade” rules in trade deals. The lobbyists demand special rights and protections masked as trade provisions.
These rules would, among other things, ban governments from requiring that corporations disclose source code information — including descriptions of their algorithms — to government regulators responsible for assessing compliance with safety or anti-discrimination laws or with independent security researchers. Such restrictions also affect policies that require manufacturers to share repair tools, like diagnostics software, with consumers or independent repair shops. And digital trade rules demanded by lobbyists would limit governments’ ability to regulate the cross-border transfer of information used for business purposes, regardless of national security or personal privacy or safety concerns.
These rules, should they be widely propagated, would conflict with several tech policies promoted by state lawmakers. According to our research, more than 100 state-level policies already on the books or considered since 2021 could be affected.
Tech companies advocated for these rules to be included in the Biden-Harris administration’s Indo-Pacific Economic Framework deal and in negotiations on the sidelines of the World Trade Organization. U.S. Trade Representative Katherine Tai rebuffed this corporate agenda, noting that it could undermine digital competition, privacy and online anti-discrimination policies. Yet Big Tech interests continue to fight for trade agreement provisions that shield the industry from meaningful regulation and liability.
State lawmakers’ efforts to regulate tech are widely popular, as evidenced by both opinion polling and the dozens of bills introduced in recent years to make the digital landscape safer and fairer. For these laws to succeed, we need to fight back against the tech industry-friendly agenda being pushed into trade agreements.
Daniel Rangel is the research director and Katie Hettinga is the program associate at Rethink Trade, an advocacy group.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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