


































Online Version -- Volume 10, Issue 2


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Regulation: Realities and Possibilities286

Sophia Reiss287

Modern communication technologies increasingly raise
concern. This growing awareness prompts examination of the
effectiveness of current regulation and consideration of
possible changes. This article explores the possibility of using
both previous American regulation and European regulation
efforts as examples to frame improvements in communications
governance. First, it evaluates the Fairness Doctrine and its
role in regulation as part of the Federal Communications
Commission (FCC) and the current Section 230 regulation.
Next, the article reviews proposed amendments and alternative
pathways for regulation before providing a recommendation
based on these regulatory schemes.

I. Introduction

The Supreme Court heard two cases in early 2023
presenting questions of online speech regulation: Gonzalez v.
Google and Twitter v. Taamneh.288 Both cases were brought by
the families of American victims of the 2015 terrorist attacks in
Paris. The families are suing the platforms for their role in
allowing these terrorists to use their platforms in order to
facilitate the attacks.289 These two cases reveal some of the

289 “Twitter, Inc. v. Taamneh,” Oyez,
https://www.oyez.org/cases/2022/21-1496.

288 Brian Fung, “Two Supreme Court Cases This Week Could Upend the
Entire Internet | CNN Business,” CNN, February 20, 2023,
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.
html.

287 Brandeis University Graduate Class of 2023, Former Editor-in-Chief of
the Brandeis University Law Journal.

286 This article is adapted from an essay recognized for the 2023 Justice
Louis D. Brandeis Essay Prize.

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profound harms that social media can facilitate and challenges
the status quo of current American regulation of online
platforms.

These cases illustrate how online hate and
disinformation influence offline hate, violence, and distrust.
The proliferation of social media platforms, especially the
specialized platforms that appeal to those trafficking in
conspiracies, allow people to fall deeper into the alternative
reality of conspiracy theories, confirm their own implicit
biases, and breed hate. Since social media platforms are run by
private companies, where users are private individuals
operating within a relationship with these companies,
regulation is limited. This is particularly challenging in the
United States given that current communications governance
limits legal liability and public regulation.

Current communications governance heavily depends
on the initial expectations of technology and communications
growth potential at the outset of these new technologies’ arrival
on the marketplace. When the internet first began being
marketed to the public, the U.S. government, specifically
Congress, understood that innovation should be encouraged
and could have positive, far-reaching implications. The
unimaginable possibilities and opportunities of the internet
promised the longed-for progress and growth. The internet
connects people, inspires innovation, broadens access, and
provides information. The focus of early legislation was to
encourage this growth.

In considering new regulation, several tensions need to
be balanced by legislators and regulators. The power and
opportunity for change, growth, understanding, and
constructive debate are fiercely protected by freedom of
speech. There is no question that freedom of speech is a core
value protecting, most centrally, political dissent.290 On the

290 Whitney v. California (1927); Tinker v. Des Moines Independent School

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other hand, speech has the power and potential to cause
emotional pain, physical violence, social alienation, and
conflict. These emotional, physical, and social harms must be
considered and balanced against the value of freedom of
speech. Other harms exist as well, as speech and dissent can
disrupt and even threaten governmental institutions. This
online environment allows for us to have digital personas,
versions of ourselves which exist online and are created from
our digital actions and behavior. Beyond the offline harms that
online platforms enable, digital personas and one’s personal
digital footprint can also be harmed.

One definition of the verb “balance,” according to
Merriam Webster, is “to bring into harmony or proportion”
which speaks to a kind of equipoise and is the regulatory
solution this article hopes to propose.291 This is vital because
the idea of balance helps to achieve “harmony.” Through
careful weighing of the before-mentioned tensions, regulation
of new technologies should enable creativity, innovation, and
positive change, while mitigating the potential for harm.

This article will propose a regulatory solution based on
elements present in the Fairness Doctrine, Section 230,
proposed amendments, consumer protection laws, and
regulatory strategies in Europe like the GDPR. To do so, the
article will first provide a background and history of each to
delineate the components and precedence that can address the
harms of social media that abound in our current digital
climate. Upon this background, an explanation of a few
potential regulatory responses that are currently being debated
and explored will be offered. Finally, the paper will draw from
the aforementioned regulations and responses to propose a new
governance response which combines the benefits and best

291 “Definition of BALANCE,” February 22, 2023,
https://www.merriam-webster.com/dictionary/balance.

District (1969)

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techniques of each of the reviewed regulations and proposed
approaches.

II. Background Regulations

A. Fairness Doctrine – Previous Regulation

First, the former regulation system of the Fairness
Doctrine must be examined. The Fairness Doctrine was created
by the Federal Communications Commission (FCC) in 1949 to
regulate “the airwaves” as there was a “scarce supply” of
stations that “were owned by the public, with TV and radio
stations functioning as ‘public trustees.’”292 The Fairness
Doctrine lasted until its repeal by the FCC in 1987 and required
broadcasters to present opposing views on important issues of
public interest.293 The notion that broadcasting licenses serve
the public interest derives from the existence of limited
bandwidth and the FCC’s role in granting licenses with the
public’s participation. The Fairness Doctrine’s requirement of a
well-rounded and fair portrayal serves the public interest.294

294 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969),” Justia
Law, https://supreme.justia.com/cases/federal/us/395/367/.

293 Dan MacGuill, “Did Ronald Reagan Pave the Way for Fox News?,”
Snopes, January 26, 2018,
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/;
“Fairness Doctrine,” Ronald Reagan,
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine; Dylan
Matthews, “Everything You Need to Know about the Fairness Doctrine in
One Post,”Washington Post (blog), August 23, 2011,
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-nee
d-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CX
ZJ_blog.html; Kathleen Ann Ruane, “Fairness Doctrine: History and
Constitutional Issues.”

292 Tom Rosentiel, “Is the Fairness Doctrine Fair Game?,” Pew Research
Center (blog), July 19, 2007,
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game.

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The Doctrine specifically required “that every licensee devote a
reasonable portion of broadcast time to the discussion and
consideration of controversial issues of public importance.”295

The second component of the Doctrine specified “that
in doing so, [the broadcaster must be] fair – that is, [the
broadcaster] must affirmatively endeavor to make … facilities
available for the expression of contrasting viewpoints held by
responsible elements with respect to controversial issues
presented.”296 This required people on both sides not only to
speak and express their opinions, but also to find the
appropriate presenters to voice opposing viewpoints.297 While
this may have enforced or enabled neutrality, or at least debate,
it also could create false equivalencies, one of the concerns to
be treated with caution for any discussions of reinstatement.
The high efficacy appears clear throughout the Fairness
Doctrine’s record and its continued support from the public and
governmental institutions over the years until its removal.
Regardless of its exact impact, the technique of incorporating
fairness and balance into a doctrine where reasonable
viewpoints must be presented provides a potential model for
future regulation.

The Fairness Doctrine found support in Congress and
the Supreme Court. The Supreme Court unanimously upheld
the Fairness Doctrine due to its focus on the public interest in
the 1969 case Red Lion Broadcasting Co., Inc. v. Federal
Communications Commission.298 In its decision, “[t]he Court
held that the FCC’s [F]airness [D]octrine regulations enhanced
rather than infringed the freedoms of speech protected under

298 Matthews, “Everything You Need to Know about the Fairness Doctrine
in One Post”; “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367
(1969).”

297 Ruane, “Fairness Doctrine: History and Constitutional Issues.”
296 Ruane, “Fairness Doctrine: History and Constitutional Issues.”
295 Ruane, “Fairness Doctrine: History and Constitutional Issues.”

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the First Amendment.”299 Further, they wrote that “the ‘public
interest’ in broadcasting clearly encompasses the presentation
of vigorous debate of controversial issues of importance and
concern to the public.”300

In 1987, however, the Fairness Doctrine met its demise.
This came about after the FCC decided that “the Fairness
Doctrine was no longer necessary given the changes that had
taken place in the media environment” and had failed to prove
its efficacy.301 While this may seem like definitive proof of its
flaws, closer examination shows that may not be true.
Additionally, the FCC’s statement about the Doctrine’s
necessity can be questioned and the efficacy evaluation may
have been biased and not thoroughly researched. The “1985
Fairness Report,” which the FCC relied on, was the first
“‘empirical assessment as to the efficacy of this chosen
regulatory mechanism to promote access by the public to the
marketplace of ideas’” and included public comment from
many as part of its review process.302 The report met criticism,
including that it “lacked any systematic statistical analysis and
relied too heavily on anecdotal examples by broadcasters.”303
Subsequent to this report, governance changes were
implemented to improve data-gathering practices and the
accuracy of regulatory mechanisms.304

304 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

303 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

302 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

301 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select,”
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7C
A191854511&v=2.1&it=r&ugroup=outside.

300 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).”
299 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).”

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B. Section 230 – Current Regulation

The next section of this paper centers on Section 230.
First, this section will explore Section 230’s historical and
legislative context. Second, the paper will examine the details
of the law itself and Congress’ motivations for putting Section
230 in place. Third, the practical implications and impact of
Section 230 will be evaluated in contrast to its development
and textual priorities.

Section 230 came about through “[t]he
Communications Decency Act of 1996 (CDA)” which “added
Section 230 to the Communications Act of 1934, generally
protecting online service providers from legal liability
stemming from content created by the users of their
services.”305 The law itself explains Congress’ original
rationale for the law. Both its findings and policy objectives
will be examined later in greater depth.306 Section 230 or “47
U.S.C. § 230” not only responded to the innovation of the
internet, but attempted to resolve two prior conflicting cases.307

These cases, namely Cubby, Inc. v. CompuServe, Inc.
and Stratton Oakmont, Inc. v. Prodigy Servs. Co, both dealt
with message board content and the question of whether
platforms are “publishers” of this content.308 The first case,
“Cubby v. CompuServe (1991),” featured the defendant,
CompuServe, who maintained an information service which
included special interest forms and found its way to court
“[w]hen a columnist for one of the special-interest forums

308 “Section 230.”

307 “Section 230: Legislative History,” Electronic Frontier Foundation,
September 18, 2012, https://www.eff.org/issues/cda230/legislative-history.

306 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material,” LII / Legal Information Institute, accessed March 25,
2023, https://www.law.cornell.edu/uscode/text/47/230.

305 Kathleen Ann Ruane, “How Broad A Shield? A Brief Overview of
Section 230 of the Communications Decency Act” (Congressional Research
Service, February 21, 2018).

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posted defamatory comments about a competitor, the
competitor sued CompuServe for libel.”309 The U.S. District
Court for the Southern District of New York, which heard the
case, concluded that “CompuServe could not be held liable as
the columnist’s distributor because CompuServe did not review
any of the content on the forums before it was posted,” which
meant they lacked “knowledge of the libel” and therefore
“could not be held responsible for it.”310

The Court wrote that “CompuServe’s CIS product is in
essence an electronic, for profit library” which is “at the
forefront of the information industry revolution,” and that
allows individuals to have “instantaneous access to thousands
of news publications across the world.”311 The Court continued
that “CompuServe has no more editorial control over such a
publication than does a public library, book store, or
newsstand, and it would be no more feasible for CompuServe
to examine every publication it carries for potentially
defamatory statements than it would be for any other
distributor to do so.”312

The second case, Stratton Oakmont Inc. v. Prodigy
Servs, Co., happened four years after CompuServe, in 1995,
and featured the New York Supreme Court with a differing
opinion on online platforms’ responsibility.313 The case
involved Prodigy, “a web services company” that “hosted
online bulletin boards.”314 This case centered around actions
Prodigy took, namely when “Prodigy moderated its online

314 “Section 230.”
313 “Section 230.”
312 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).

311 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991),
accessed March 25, 2023.

310 “Section 230.”; Castro, “Overview of Section 230.”

309 Ashley Johnson and Daniel Castro, “Overview of Section 230: What It
Is, Why It Was Created, and What It Has Achieved,” February 22, 2021,
https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-i
t-was-created-and-what-it-has-achieved/; “Section 230.”

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message boards and deleted some messages for ‘offensiveness
and ‘bad taste,’’’ which the Court found made Prodigy “akin to
a publisher with responsibility for defamatory postings that
made it onto the site.”315 Given the multitude of posts on this
platform, specifically “60,000 postings a day,” review of these
for defamatory content would be quite a challenge.316

The first case, CompuServe, appears to be a clearer and
stronger application of precedents to a new technology. The
Court’s comparison between the information service at issue in
the case and a library presents one type of interwoven
relationships and control within the online sphere, which
frames the information service provider as a very hands-off and
structural type of internet operator. The second case, Stratton v.
Prodigy, dealing with a platform that actively moderated its
content while still maintaining a large amount of content
typical of internet services, would be responsible despite no
clear legal precedent providing a background for this
conclusion. This led to a conflict where one platform,
CompuServe, would not be classified as a publisher, therefore
void of any liability for the content on its platform, while
another similar platform, Prodigy, would be classified as a
publisher, leading them to be held liable and responsible for the
content on its platform.

As a result, “Section 230 had two purposes: the first
was to ‘encourage the unfettered and unregulated development
of free speech on the internet,’ as one judge put it; the other
was to allow online services to implement their own standards
for policing content and provide for child safety.”317 Section
230 consists of six sections.318 Section 230 starts with
Congress’ findings and the legislators framing of the context

318 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

317 “Section 230.”
316 “Section 230.”
315 “Section 230.”

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which inspired the law’s creation.319 Congress explained the
need for Section 230 as arising out of “[t]he rapidly developing
array of Internet and other interactive computer services”
which “represent an extraordinary advance in the availability of
educational and informational resources to our citizens.”320
Congress explained that the goals of Section 230 were “to
promote the continued development of the internet and other
interactive computer services and interactive media…to
preserve the vibrant and competitive free market… [and] to
encourage the development of technologies that maximize user
control over information.”321

Through Section 230(c), Congress granted “Protection
for ‘Good Samaritan’ Blocking and Screening of Offensive
Material,” meaning that anyone using the internet sphere would
be treated automatically as being well-intentioned or as “Good
Samaritans.”322 Good Samaritan laws rely on the concept of
good public policy as being that which “limit[s] liability for
those who voluntarily perform care and rescue in emergency
situations.”323 The utilization of this principle in Section 230
exemplifies its wider application, encompassing situations
where limited liability is enforced. Section 230 and the
protections under the “Good Samaritan” header include “[n]o
provider or user of an interactive computer service shall be
held liable” given their “good faith to restrict access” to
content.324 Further, “the good Samaritan law provides
protection from claims of negligence for those who provide

324 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

323 Brian West and Matthew Varacallo, “Good Samaritan Laws,” in
StatPearls (Treasure Island (FL): StatPearls Publishing, 2023),
http://www.ncbi.nlm.nih.gov/books/NBK542176/.

322 “47 U.S. Code § 230.”
321 “47 U.S. Code § 230.”
320 “47 U.S. Code § 230.”

319 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

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care without expectation of payment,” which provides an
interesting contradiction when applied to Section 230’s focus
on “interactive computer service” providers and “information
content provider[s],” who are monetizing their roles and
actions.325 These providers are not considered “Good
Samaritans.” Despite this inherent contradiction, the liability
shield within Section 230(c)(1) removes these companies from
liability “as publisher or speaker.”326

Section 230 continues in (c)(2) to state that “[n]o
provider or user of an interactive computer service shall be
held liable on account of” their actions taken either, “to restrict
access to…material… whether or not such material is
constitutionally protected…[or]...to enable or make available to
information content providers.”327 The first part “means online
services are not liable for defamatory or otherwise unlawful
content their users post.”328 In contrast, Section 230(c)(2)
“protects online services from liability for engaging in content
moderation and enforcing their online standards” specifically
for actions “‘taken in good faith.’”329

Section 230(d) explains that providers should “notify
such customers that parental control protections... [exist and]
provide the customer with access to information identifying
current providers of such protections.”330 This appears to
indicate the legislator’s awareness that limited liability would
result in children being left vulnerable absent these extra
controls. Section 230 has minimal effect on other laws.331 The
definitions provide insight into how much the internet has

331 “47 U.S. Code § 230.”

330 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

329 Johnson and Castro, “Overview of Section 230.”
328 Johnson and Castro, “Overview of Section 230.”
327 “47 U.S. Code § 230.”
326 “47 U.S. Code § 230.”

325 West and Varacallo, “Good Samaritan Laws.”; “47 U.S. Code § 230 -
Protection for Private Blocking and Screening of Offensive Material.”

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developed since Section 230 was implemented. Section 230(f)
defines the “[i]nternet,” “interactive computer service,”
“information content provider,” and “access software
provider.”332 The way the “interactive computer service” is
defined is through a comparison to “services offered by
libraries or educational institutions.”333 By continuing to
uphold that image, serving in a similar way to libraries, allows
these services to remain the subject of the limited liability that
Section 230 provides.334

Section 230 also incorporates the way courts interpret
and apply the law and its “[l]iability [s]hield.”335 Section 230 is
applied broadly due to the interactive computer service
definition and the information content provider definitions.336
Section 230 defines “interactive computer service” as “any
information service, system or access software provider that
provides or enables computer access by multiple users to a
computer server.”337 First, the interactive computer service
definition allows for the most broad liability shield which
“[r]eviewing courts have interpreted [the liability shield] to
cover many entities operating online, including broadband
Internet access service providers (e.g., Verizon FIOS and
Comcast Xfinity), Internet hosting companies (e.g., DreamHost
and GoDaddy), search engines (e.g., Google and Yahoo!),
online message boards, and many varieties of online
platforms.”338

338 Ruane, “How Broad A Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

337 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

336 Ruane.

335 Ruane, “How Broad A Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

334 “47 U.S. Code § 230.”
333 “47 U.S. Code § 230.”
332 “47 U.S. Code § 230.”

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The second definition in its application covers “when
[providers] disseminate others’ allegedly unlawful content, but
not when they are wholly or partially responsible for the
production of such content,” or when they are acting as an
“information content provider.”339 As a result, it allowed
business models to proliferate which all “rely on a wide variety
of user generated content” including making possible “user
reviews and comments” through “the liability protection
offered by Section 230.340 So far the courts presented with this
question have decided that editing content does not change the
content enough to remove the platforms’ protection under
Section 230’s liability shield.341 The court’s choice to interpret
editing compared to other actions of the platforms helps frame
how Section 230 categorizes these online services as distinct
from publishers or speakers.342 Section 230 provides a liability
shield for “traditional publishing functions” and editorial
choices including publishing content and withdrawing such
content.343

This aspect of Section 230 protects platforms even
when they remove content, which enables “those same
websites to filter out violent, or graphic content, harassment,
misinformation, hate speech, and other objectionable content,
thereby creating a better user experience.”344 While this appears
to obligate platforms or services to keep users safe, the other
protection specifically from liability for the third-party content
means that there is no obligation to filter content.345 The
obligation does not necessarily create the protective

345 Johnson and Castro, “Overview of Section 230.”
344 Johnson and Castro, “Overview of Section 230.”

343 Ruane, “How Broad a Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

342 Ruane.

341 Ruane, “How Broad a Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

340 Johnson and Castro, “Overview of Section 230.”
339 Ruane.

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environment it appears to and as a result, judicial interpretation
makes clear Section 230’s exact scope including the extent and
limits of its protections. As applied, Section 230 does not
protect online platforms if they develop or induce illegal
content, selectively repost content, breach contracts, fail to act
in good faith, or fail to warn users of illegal activity hosted on
their platform.346

Further judicial interpretation has pointed to areas
where Section 230 is unclear, particularly in the face of a vast
and new technology environment.347 This includes cases where
algorithmic sorting was examined by the courts as it appears to
be an unclear issue of immunity where algorithmic filters
content particularly on social media platforms and searches.348
A District of Columbia Circuit Court held that a “search
engine’s tools did ‘not distinguish’ between different types of
user content” and instead simply “translated all types of
information, both legitimate and scam information, in the same
manner.”349

Overall, the practical implications and Section 230’s
legal interpretations result in an unregulated online
environment where platforms maintain user agreements that
hint to filters and where most content can be shared without
repercussions. This environment raises questions about
objectionable content that remains on their site, algorithms that
spread this content, and the general growth and control of Big
Tech. These questions and investigations are complex because
Section 230 assumes that online actors act in “good faith” and

349 Brannon and Holmes, “Section 230: An Overview.”
348 Brannon and Holmes, “Section 230: An Overview.”

347 Valerie C Brannon and Eric N Holmes, “Section 230: An Overview,”
April 7, 2021, 58.

346 Daniel Castro and Ashley Johnson, “The Exceptions to Section 230:
How Have the Courts Interpreted Section 230?,” February 22, 2021,
https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-c
ourts-interpreted-section-230/.

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fully place the obligation for filtering content on the companies
with no examination of how they do it or what content leaves
and what content remains on the platforms.

Further, algorithms which are central to many
platforms’ business models are not addressed by Section 230.
Social media algorithms “can be defined as technical means of
sorting posts based on relevancy” in which the content that the
user sees is prioritized including, at times, based on usage of
the platform.350 The way algorithms curate user experiences
would most likely fall into “editorial decisions,” which
platforms are expected to make in “good faith,” but the public
often has limited information or awareness of how the
algorithms work and change their experiences.

This leaves people to deal with the consequences of the
curated content without recourse, as the algorithms are made
and run by the platforms who can hide behind Section 230’s
“liability shield.” Lastly, the way Big Tech, the largest
companies dominating the technology marketplace, grew and
gained control over the online space was encouraged and
enabled by Section 230, but the consequences of their actions
and algorithms and these companies’ relative power compared
to that of users, regulators, and lawmakers may have been
unforeseen. Indeed, some even argue that the debate over
Section 230 has become a substitute for larger debates around
speech and discussions about how a free marketplace of ideas
can really function.351 Further, these questions relate to who
should be the ones’ deciding how this marketplace should

351 Ovide, Shira. “What’s Behind the Fight Over Section 230.” The New
York Times, March 25, 2021, sec. Technology.
https://www.nytimes.com/2021/03/25/technology/section-230-explainer.htm
l.

350 Maria Alessandra Golino, “Algorithms in Social Media Platforms,” April
24, 2021,
https://www.internetjustsociety.org/algorithms-in-social-media-platforms.

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work, what happens in response to any harms that ensue, and
who should be responsible.352

III. Potential Responses

A. Proposed Changes to Section 230 – Potential Response 1

As a result of this unregulated technology and media
environment, proposals abound for how to amend Section 230
to fix its flaws to achieve its policy objectives. Some proposed
amendments make the liability protection conditional, others
add “more exceptions” to the liability protection, in addition to
more drastic proposals “to repeal Section 230 entirely,” or
“more incremental rollbacks.”353 Internet companies joined the
flurry of reform proposals with ideas of their own.354 The
rationale for these reforms often goes along the lines of the
need to regulate the vast power of big tech especially with
regard to content removal and the impacts of algorithms on
young people.355 These suggested reforms run counter to
Section 230 proponents, who argue for the law’s preservation
as “its myriad benefits outweigh its few flaws,” especially
given the law’s major role in creating the online world.356

One proposal is the Platform Accountability and
Consumer Transparency Act (PACT Act) which removes
immunity for illegal content, and outlines procedures for

356 Ashley Johnson and Daniel Castro, “Proposals to Reform Section 230,”
February 22, 2021,
https://itif.org/publications/2021/02/22/proposals-reform-section-230/.

355 Brannon and Holmes, “Section 230: An Overview.”

354 Ovide, “What’s Behind the Fight Over Section 230.”; Brannon and
Holmes, “Section 230: An Overview.”

353 Ovide, “What’s Behind the Fight Over Section 230.”; Valerie C Brannon
and Eric N Holmes, “Section 230: An Overview,” April 7, 2021, 58.

352 Ovide, Shira. “What’s Behind the Fight Over Section 230.”

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content removal.357 This proposal faced problems as it conflicts
with the Digital Millennium Copyright Act (DMCA) that
addresses copyright law violations where the law “provides a
‘safe harbor’ to cover providers who remove content after
being notified that the content may” be in violation.358 The
PACT Act may also be changing since “both the DMCA and
the e-Commerce Directive [(a similar EU law)] have also been
subject to debate and proposals for reform.”359 Another
proposal is the “Stopping Big Tech’s Censorship Act” in which
“providers and users may only claim immunity under Section
230(c)(1) if a service ‘takes reasonable steps to prevent or
address the unlawful use’ of the service’ or publication of such
illegal content.”360

The CASE-IT Act also removes platform immunity, but
opts for a different approach.361 The CASE-IT Act has
“providers and users lose Section 230(c)(1) immunity for a
year if they engage in certain activities, including permitting
harmful content to be distributed to minors, if the harmful
content “‘is made readily accessible to minors’” without the
existence or use of systems to prevent this from happening.362
Another similar proposal is “the Safeguarding Against Fraud,
Exploitation, Threats, Extremism, and Consumer Harms
(SAFE TECH) ACT,” which would not provide immunity for
platforms’ “ads or paid content, civil rights law, stalking or
harassment laws, wrongful death actions, or human rights
violations abroad” and failures to take down content in
response to a court order.363 This bipartisan proposal is
supported by advocacy groups including the Anti-Defamation

363 Johnson and Castro, “Proposals to Reform Section 230.”
362 Brannon and Holmes, “Section 230: An Overview.”
361 Brannon and Holmes, “Section 230: An Overview.”
360 Brannon and Holmes, “Section 230: An Overview.”
359 Brannon and Holmes, “Section 230: An Overview.”
358 Brannon and Holmes, “Section 230: An Overview.”
357 Brannon and Holmes, “Section 230: An Overview.”

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League (ADL) and Muslim Advocates.364 Each of these content
and activity carve-outs risk “over-enforcement” as they
“require online services to determine what is legal or illegal,”
and would likely lead them to remove grey area “to avoid
liability.”365 This already took place in response to a similar
carve-out for sex trafficking that passed in 2018.366 The
over-enforcement resulted in a substantial share of material
being removed that had no connection to sex trafficking
harms.367 However, too many exceptions to Section 230 would,
in effect, repeal the law entirely.368 Adding a multitude of
exceptions to the liability shield would not only affect bad
actors benefiting from illegal content, but platforms genuinely
trying to prevent and remove illegal content.369

The Ending Support for Internet Censorship Act would
require companies of a certain size, or with a particular level of
revenue, “to prove to the Federal Trade Commission every two
years that their algorithms and content moderation practices are
politically neutral in order to receive Section 230 liability

369 Johnson and Castro, “Proposals to Reform Section 230.”
368 Johnson and Castro, “Proposals to Reform Section 230.”
367 Johnson and Castro, “Proposals to Reform Section 230.”
366 Johnson and Castro, “Proposals to Reform Section 230.”
365 Johnson and Castro, “Proposals to Reform Section 230.”

364 Chris Riley and David Morar, “Legislative Efforts and Policy
Frameworks within the Section 230 Debate,” Brookings (blog), September
21, 2021,
https://www.brookings.edu/techstream/legislative-efforts-and-policy-frame
works-within-the-section-230-debate/; “Muslim Advocates Applauds New
Bill to Enact Reforms to Section 230,” Muslim Advocates, February 5,
2021,
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-
adding-reforms-to-section-230/; “ADL Supports Reforming Section 230 of
the Communications Decency Act to Hold Tech Companies Accountable,
Prioritize Users and Protect Civil Rights | ADL,” accessed April 6, 2023,
https://www.adl.org/resources/press-release/adl-supports-reforming-section-
230-communications-decency-act-hold-tech.

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protection.”370 This is most clearly akin to the Fairness
Doctrine given its emphasis on balanced presentation.371
Another proposal focuses on algorithms by limiting federal
immunity from liability for technology companies when their
platform’s algorithms recommend third party content that
“cause physical or emotional injury.”372 Other proposals
encourage the creation of “[b]ehavioral [s]tandards” for
“sufficiently responsible behavior and establish enforcement
mechanisms that evaluate compliance (while navigating First
Amendment limits on government restriction of corporate
speech).”373 This includes the Online Freedom and Viewpoint
Diversity Act, the EARN IT Act, and a proposal by Mark
Zuckerberg.374

Lastly, repeals of Section 230 are proposed to enforce
accountability through liability and remove the protections of
early innovations as it is no longer necessary to protect the
early trial-and-error period of these companies. While there
may be a concern that without Section 230 free speech and
exchanges of ideas online would be restricted, government
action and restrictions would still be limited by the First
Amendment.375 Further, the First Amendment would provide
background protections for speakers and publishers, like those
offline, while there would be less consistent and vast immunity
protections for the platforms.376

376 Brannon and Holmes, “Section 230: An Overview.”
375 Brannon and Holmes, “Section 230: An Overview.”

374 Riley and Morar, “Legislative Efforts and Policy Frameworks within the
Section 230 Debate.”

373 Riley and Morar, “Legislative Efforts and Policy Frameworks within the
Section 230 Debate.”

372 "H.R.5596 - 117th Congress (2021-2022): Justice Against Malicious
Algorithms Act of 2021." Congress.gov, Library of Congress, 18 October
2021, https://www.congress.gov/bill/117th-congress/house-bill/5596.

371 Johnson and Castro, “Proposals to Reform Section 230.”
370 Johnson and Castro, “Proposals to Reform Section 230.”

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B. Consumer Protection Laws – Potential Response 2

Although Section 230 may appear as the only legal
avenue through which platform regulation and the
conversations around it is possible, there are other legal
avenues through which online speech could be regulated to
comply and fulfill the high expectations that these technology
companies regularly set. For instance, these goals can be
achieved through consumer protection laws; specifically, laws
that prohibit Unfair, Deceptive Acts and Practices (UDAPS).
Such laws particularly focus on upholding the public interest as
the core expectation behind these companies actions and
treatment of their users.

In addition to overseeing antitrust law, the Federal
Trade Commission (FTC) monitors consumer protection
violations.377 While “Section 5 does not define ‘unfair or
deceptive acts or practices’” it does state that, “a practice is not
‘unfair’ unless it ‘causes or is likely to cause substantial injury
to consumers which is not reasonably avoidable by consumers
themselves and not outweighed by countervailing benefits to
consumers or to competition.”378 Beyond the federal law and its
enforcement through federal agencies, “[s]tates have crafted
their own consumer protection laws based on a handful of
model acts (including the FTC Act)” which aim to protect
consumers from unfair and deceptive acts and practices.379
These entities are all able to “bring similar lawsuits alleging

379 Canzona, “I’ll Know It When I See It.”

378 Eric N. Holmes, “Unfair or Deceptive Acts or Practices (UDAP)
Enforcement Authority Under the Federal Trade Commission Act”
(Congressional Research Service, November 4, 2022),
https://crsreports.congress.gov/product/pdf/IF/IF12244.

377 “Consumer Protection Laws,” LII / Legal Information Institute, accessed
April 10, 2023,
https://www.law.cornell.edu/wex/consumer_protection_laws.

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UDAP-based violations” to act in the public interest, as well as
consumers or advocacy groups.380

In relation to social media regulation, consumer
protection laws like UDAP provide an avenue for the public
interest to be protected, given the special role these technology
companies hold within society. As Jack M Balkin, Knight
Professor of Constitutional Law and the First Amendment at
Yale Law School, notes, “[s]ocial media companies and search
engines have social and moral obligations to the public” that
arise out of their role in society.381 These companies often
voluntarily categorize themselves as places “to promote
public-spirited goals,” and therefore should “act according to
public-regarding, professional norms.”382 Given that their
innovations often revolve around providing a space for positive
developments like greater and stronger interconnection, access,
and creativity; these companies, like other technology
companies, provide a useful service to society.

When these companies choose to frame themselves in
this way, act to provide such services, and take on such
obligations as those Balkin discusses, they become legally
obligated to hold themselves accountable to their own
self-portrayal. The public should be able to expect that these
companies are being honest with users and the public. The
UDAPs do just that, holding the companies accountable to their
public portrayal by prohibiting false promises and unfair and
deceptive behavior. Social media companies illustrate this as
they often declare in Congress how safe their platforms are and
how they enforce their user agreements, while users and

382 Balkin, “Free Speech Is a Triangle.”

381Balkin, Jack M., Free Speech is a Triangle (May 28, 2018). Columbia
Law Review, 2018, Forthcoming, Yale Law School, Public Law Research
Paper No. 640, https://ssrn.com/abstract=3186205

380 Holmes, “Unfair or Deceptive Acts or Practices (UDAP) Enforcement
Authority Under the Federal Trade Commission Act.”

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advocacy groups find that they still face the same unsafe
behavior banned by these user agreements.

The FTC and State Attorneys General enforce
consumer protection laws with regard to privacy and
“[r]especting [c]onsumer [c]hoice” with respect to
“[d]o-not-track settings on browsers which prevent advertisers
from tracking consumers’ online activities.”383 Consumer
protection laws and UDAPs, in particular, already protect
consumers from financial injury, but the vital question here is
whether courts will see these laws as fit to protect consumers
from online companies.

In 2021, Muslim Advocates, a Muslim civil rights
advocacy group, sued Facebook and Facebook executives for
deception over their actions relating to the content on the
platform.384 The lawsuit, using the D.C. Consumer Protection
Procedures Act, or the DC CPPA, “allege[d] that Facebook
ha[d] exaggerated how aggressively it remove[d] hate speech”
in violation of the law.385 Facebook’s actions specifically
violated the DC CPPA, as it states that “it is illegal for a
company to make material misrepresentations about a good or
service in the District of Columbia.” Muslim Advocates asked
for Facebook to either “[s]top lying, or have your actions
conform to your statements.”386 Importantly, Muslim
Advocates’ assertions centered on the statements of Facebook
executives and the user agreement’s community standards that
frame users’ expectations of safety on their platform. While

386 Allyn, “Muslim Advocates Has Filed A Lawsuit Against Facebook.”
385 Allyn, “Muslim Advocates Has Filed A Lawsuit Against Facebook.”

384 Bobby Allyn, “Muslim Advocates Has Filed A Lawsuit Against
Facebook,” NPR, April 8, 2021, sec. Religion,
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-l
awsuit-against-facebook.

383 Danielle Keats Citron, “The Privacy Policymaking of State Attorneys
General,” Notre Dame Law Review 92, no. 2 (December 2016),
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7C
A484155772&v=2.1&it=r&ugroup=outside.

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this method of using consumer protection laws is still being
tested, given its efficacy and broad application elsewhere, it
could provide a model for accountability and necessary
enforcement to counteract failures to uphold one’s duty to
serve the public interest.

C. European Union’s Solutions – Potential Response 3

In this section, the paper turns to the European Union
because it stands out as a model given the promise shown in
their active regulation of Big Tech with far-ranging impacts
and strong popularity among the public.387 These impacts are
apparent since when those companies are fined, they often
improve their behavior and apply the changes required by the
EU’s regulation worldwide for ease of operation.388 The
popularity of these regulations, which will be explained in this
paragraph, derives from how the regulatory laws themselves
are written, which often give citizens more information and
control with regard to their own data and experience.389

The European Union seeks to meet the needs that arise
out of these new technologies through a focus on privacy and
data protection. The laws and regulation of privacy online,
specifically data privacy protections, is known as the General
Data Protection Regulation (GDPR). The GDPR went into
effect in 2018, after passing in 2016, in order to give
companies and countries time to prepare for this robust
legislation.390 The GDPR grew out of the right to privacy

390 “Data Protection in the EU,” June 4, 2021,
https://commission.europa.eu/law/law-topic/data-protection/data-protection-

389 Amaro, “How Europe Became the World’s Top Tech Regulator.”
388 Amaro, “How Europe Became the World’s Top Tech Regulator.”

387 Silvia Amaro, “How Europe Became the World’s Top Tech Regulator,”
CNBC, March 25, 2021,
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds
-top-regulator.html.

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codified in the 1950 European Convention on Human Rights
which states, “Everyone has the right to respect for his private
and family life, his home and his correspondence.”391

The GDPR is one of a series of new technology
governance laws in which the EU worked to protect one’s right
to privacy within legislation.392 The way the GDPR functions
with its definitions, and specification of both the rights and
requirements for companies, enables a clear and
comprehensive application. The burden of proof is placed on
the company fulfilling GDPR requirements.393 Further, both
national institutions within the European Union member states
and international institutions exist that help enforce the
regulations of the GDPR.394 One example of these international
institutions is the European Data Protection Board (EDPB)
which is an independent regulatory body charged with
maintaining “the consistent application of data protection rules
throughout the European Union” established by the GDPR and
that includes representatives of the national entities, an EU
supervisor, and non-voting involvement of the European
Commission.395

Since the GDPR, the European Union has continued to
focus on technology and is creating “[t]he Digital Services

395 “Data Protection in the EU.”

394 “Data Protection in the EU,” June 4, 2021,
https://commission.europa.eu/law/law-topic/data-protection/data-protection-
eu_en.

393 “What Is GDPR, the EU’s New Data Protection Law?”
392 “What Is GDPR, the EU’s New Data Protection Law?”
391 “What Is GDPR, the EU’s New Data Protection Law?”

eu_en; “Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the Protection of Natural Persons with Regard
to the Processing of Personal Data and on the Free Movement of Such Data,
and Repealing Directive 95/46/EC (General Data Protection Regulation)
(Text with EEA Relevance),” 119 OJ L § (2016),
http://data.europa.eu/eli/reg/2016/679/oj/eng; “What Is GDPR, the EU’s
New Data Protection Law?,” GDPR.eu, November 7, 2018,
https://gdpr.eu/what-is-gdpr/.

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package” which includes both the “Digital Services Act and
Digital Markets Act.”396 In addition to this package, more
regulation is being worked on to govern artificial
intelligence.397 The European Commission states that “[t]he
Digital Services Act and Digital Markets Act aim to create a
safer digital space where the fundamental rights of users are
protected and to establish a level playing field for
businesses.”398 It appears to focus on the same kinds of
companies as Section 230, with a similar overarching goal.

This prompts the question: what, if anything, is really
different between Section 230 and the EU’s efforts? Perhaps
the European Union learned from the mistakes of Section 230.
Their laws came later, allowing for a stronger understanding of
the technologies at play.399 Following their adoption in July
2022, these EU laws began taking effect by 17 February 2023,
when the regulatory authorities categorized services into a size
and type category that will frame the requirements that they
need to meet.400 These newest pieces of regulation will be fully
in place by 2024 and also include several checkpoints that
technology companies need to meet along the way to ensure
full compliance and incorporate accountability mechanisms.401

401 “The Digital Services Act Package | Shaping Europe’s Digital Future.”
400 “The Digital Services Act Package | Shaping Europe’s Digital Future.”
399 “The Digital Services Act Package | Shaping Europe’s Digital Future.”

398 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package.

397 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package;
Amaro, “How Europe Became the World’s Top Tech Regulator.”

396 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package;
Amaro, “How Europe Became the World’s Top Tech Regulator.”

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The Digital Services Act “proposed large fines for
internet platforms like Facebook, Twitter [(now known as 𝕏)]
and YouTube if they do not restrict the spread of certain illegal
content like hate speech.”402 This is similar to the GDPR’s large
fines, which often make a big splash in the news.403 Widely,
“GDPR fines are used to fund public services,” a model that
would likely be replicated with these newer regulations.404
These fines, while quite substantial, are applied taking into
account the companies’ size and offense so as to remain
proportional.405 For the GDPR, “[t]here are two tiers of
penalties which max out at $20 million or 4% of global
revenue (whichever is higher),” as well as enabling those
harmed “to seek compensation for damages.”406 Further,
composition, explanation, and implementation of these
regulations takes into account all of the players involved:
individuals, the technology companies, business users, and
society.407 In these regulations, the EU often requires
compliance to be built into the structure of companies. For
example, the GDPR outlines implementation of data security
training, specifies the responsibilities of data protection within

407 “The Digital Services Act: Ensuring a Safe and Accountable Online
Environment,” accessed April 13, 2023,
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/euro
pe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-
environment_en.

406 “What Is GDPR, the EU’s New Data Protection Law?”
405 “What Is GDPR, the EU’s New Data Protection Law?”
404 “Three Years of GDPR.”

403 “Three Years of GDPR: The Biggest Fines so Far,” BBC News, May 24,
2021, sec. Technology, https://www.bbc.com/news/technology-57011639.

402 Adam Satariano, “Big Fines and Strict Rules Unveiled Against ‘Big
Tech’ in Europe,” The New York Times, December 15, 2020, sec.
Technology,
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europ
e.html.

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teams, and details Data Protection Officer requirements for
certain organizations.408

These regulations are met with what Dessislava Savova
describes as “‘a real willingness and wide political support in
the EU to set the highest global standards when it comes to
tech regulations.’”409 She further notes that the Digital Services
“‘package will be a real game changer’” as “‘[i]t will create a
single regulatory framework and will set up a foundation of a
strong cooperation and a new governance structure in the EU,
with tangible enforcement mechanisms and important
sanctions.’”410 Further, the New York Times notes that these
regulations, along with some national ones, “helped reinforce
Europe as home to some of the world’s toughest policies
toward the technology industry.”411

IV. New Plan Inspired by This History – This Paper’s

Solution

This section will present the pros and cons of each of
the previously discussed regulations and how they could be
combined in such a way that improves upon these regulatory
schemes. First, this section will outline the positives of each
regulatory method; second, it will address their limitations;
third, it will offer a multipronged recommendation.

411 Satariano, “Big Fines and Strict Rules Unveiled Against ‘Big Tech’ in
Europe.”

410 Amaro, “How Europe Became the World’s Top Tech Regulator.”
409 Amaro, “How Europe Became the World’s Top Tech Regulator.”
408 “What Is GDPR, the EU’s New Data Protection Law?”

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A. Favorable Aspects of these Regulations

The Fairness Doctrine proved effective at instilling
balance in regulatory schemes by encouraging technological
innovation while safeguarding the public’s interest in being
informed on issues of public concern and safety. Broadcast
stations developed within the Fairness Doctrine’s regulatory
realm introduced and popularized these new technologies. At
the same time, the Supreme Court endorsed the Fairness
Doctrine’s role in promoting free speech and an informed
public.

Section 230 attempted to balance and incorporate
similar interests through a different mechanism. Section 230
used an almost absolute liability shield that enabled online
platforms and services to develop and grow tremendously. This
enabled technology companies to create different strategies and
approaches to content on their platforms, including algorithms.
The Section 230 reforms present promising solutions.
Consumer protection laws prove effective in other markets as
they prevent misrepresentation and unfair treatment of
consumers. The European Union’s solutions promote
accountability through massive fines and illustrate a strong
protection-based approach.

B. Limitations of These Regulations

The Fairness Doctrine lacked enough meaningful
buy-in from broadcasters as well as clear methods to maintain
accountability as a regulation long-term because it became
difficult to evaluate or prove its efficacy. Section 230 failed at
maintaining balance because the interpretation of the liability
shield prevented technology companies from being held
accountable. Both the Section 230 reforms and the consumer
protection laws remain relatively untested within the online

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environment and technology companies at large. There are
many Section 230 reforms proposed and many, while framed
similarly, promote vastly different approaches. Despite some
gaining momentum recently, it is unclear when and how they
would be applied.

The European Union’s solutions build more regulatory
structures and focus on privacy, which distinguishes it from
American regulations. Further, the strict protection of freedom
of speech existing in the United States is unparalleled
elsewhere, including in the EU, so the EU’s solutions may not
fit with American free speech absolutism. Also, there may be
concerns amongst United States legislators about stopping the
growth of technology companies through strict regulation.

C. The Outlined Recommendation

From this background, the new proposal is one which
welcomes regulation not as a hindrance to growth, innovation,
and freedom, but as something that enables and protects it. An
informed public’s access to information is no longer confined
solely to news media. Thus, regulations regarding who is
informing the public and how they are being informed must
expand its range to include the context of online platforms. The
standard should be elevated from a basic level of protecting the
ability to hear both sides of a matter to consumers being
informed about their privacy, their safety, and the
accountability of the platforms they are on.

Strong understandings of technology companies and
how their products work must be incorporated into the
background of the new proposed regulation. The Fairness
Doctrine lacked this element as it failed to understand the
practical approaches it encouraged broadcasters to take and the
challenges that came with that approach. There must be a
careful understanding of the interests, innerworkings, and

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particular context of the technology companies to avoid
pushback from the companies. Following the Fairness
Doctrine’s balanced approach to speech, new regulation should
promote free speech through providing content-neutral
regulation and not tell companies what to regulate, but how to
regulate content: evenly and fairly.

Parts of the regulations mentioned above fit this
proposed framework. For instance, one of Section 230’s
proposed reforms, the SAFE TECH Act, illustrates how
comprehension of technology companies and true
accountability can be built into an American framework.
Simply copying the effective methods of the European Union’s
regulation would not be ideal as the American context is just
that: American. This distinction requires understanding and
incorporation of respect for American ideals, including a
broader protection for freedom of speech and the promotion of
innovation. The EU’s privacy law, the GDPR, should be
incorporated to a certain extent, as we generally lack privacy
laws and data protection. This is already starting in California,
but beyond incorporating the GDPR and other EU laws, our
approaches could be inspired by theirs. Our regulations could
be more effective following the multipronged approach found
in the European Union’s regulations where rights are defined,
expectations are outlined, compliance is formalized,
compliance guidelines are clear, and meaningful fines are
incorporated.

Together, the history and potential future of technology
regulation show promise. Regulation promoting both the public
interest in tandem with encouraging innovation has existed
previously and continues to exist. Understanding the public
interest, policy concerns, new technology, historical regulation,
business impact, and the innovation and online environments is
crucial to a successful and balanced regulatory approach.

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Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969)
Tinker v. Des Moines Independent Community School District,

393 U.S. 503 (1969)
Twitter, Inc. v. Taamneh, 598 U.S. ___ (2023)
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EU Codes Cited

The Digital Markets Act: Ensuring Fair and Open Digital
Markets

The Digital Services Act: Ensuring a Safe and Accountable
Online Environment Regulation (EU) 2016/679 of the
European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to
the processing of personal data and on the free
movement of such data, and repealing Directive
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