Balancing Act: Exploring the Impact of Increased Technological Regulation on the Free Exchange of Ideas
The exchange of ideas and information is a foundation of America as stated in the First Amendment to the Constitution. In the modern age, the claim is that the government should regulate social media to protect national security and foreign influence on youth.
The issue is whether the government is responsible for keeping people safe from foreign influence, or if there are protections already in place to satisfy these questions.
The Constitution gives the federal government the primary power to manage the United States’ foreign relations. Article I, Section 10 prohibits states from engaging in a set of activities that implicate international affairs, while the Supremacy Clause, Foreign Commerce Clause, and other constitutional provisions place key elements of this power with the federal government. Interpreting these provisions, the Supreme Court has described the United States’ foreign affairs power not only as superior to the states but residing exclusively in the national government. (1)
Additionally, several Justices concluded in an 1840 case that the Compact Clause covers every agreement between state and foreign governments regardless of the agreement’s form or content. (2)
In recent times, there have been subsequent laws established to protect Americans from foreign advisories and the use of technological devices. The International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain), are among recent actions taken by the United States government to better fortify protections and recourse surrounding information technology used by American citizens. (3)
When a person decides to use a smartphone application (app), there are terms and conditions that they consent to. (4) However, within these conditions, the application owner/creator releases liability for damages ranging from loss of profit to loss of opportunity the user may experience while exchanging information with the app. These are standard conditions in most apps on smartphones that users sign off on to access the features within the app.
Under these conditions, the apps that United States users have on their phones have corporate locations within the United States and have agreements ratified by each user. Therein, protecting the user under U.S. law, and placing liability responsibility on each user. There are deeply rooted laws and continuing legislative action that further establish fortification around the users of apps and the information exchanged between users in the United States and other countries. These statutory protections coupled with the release of liability by the app users establishes an environment where the transaction of information through technology is boxed into a middle ground between users in the United States and those they interact with in other countries. The caveat is the exchange of illegal materials, which criminally falls on the user and/or the receiver of illegal information, if either party fails to report the criminal activity to the appropriate authorities.
The United States continues to take a strong legislative stance to protect citizens during their use of technology and information exchange on the internet. This includes the exchange of information with those who could be in other countries. Additionally, the legality of crimes still applies regardless of the medium used to commit the crime. The exchange of information is a foundation of the freedoms we protect in the United States. This includes foreign influence and the ability to commit crimes. However, once these actions are taken, the proper laws and repercussions are triggered to hold those responsible liable for their actions.
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