Bloomberg Law
March 15, 2023, 9:00 AM

Florida ‘Digital Rights’ Push Big Tech Into DeSantis Culture War

Brenna Goth
Brenna Goth
Staff Correspondent

Florida Gov. Ron DeSantis is targeting Big Tech with a plan he says will bolster consumer privacy protections, guard against censorship, and enshrine other “digital rights”—though critics charge aspects designed to appeal to the GOP base may not meet constitutional muster.

DeSantis, citing surveillance and overreach by online companies such as Google, has proposed a wide-ranging tech agenda for Florida lawmakers to advance during a 60-day legislative session that ends in May. His priorities, which include requiring search engines to disclose if they prioritize results based on politics, come amid wide speculation that DeSantis is preparing a presidential bid.

Social media and other tech companies face scrutiny across the political spectrum this year as both state and federal lawmakers consider giving consumers more control over how businesses use their personal information. DeSantis’ plan seizes on those concerns while also appealing specifically to Republicans who allege popular platforms unfairly censor or limit conservative viewpoints— a claim which research refutes but could play well with GOP primary voters.

The DeSantis tech initiative joins his other efforts to seize on hot-button political issues within conservative circles such as banning the discussion of sexual orientation or gender identity in early grades and targeting Walt Disney Co.’s special tax district.

“He’s really leaned into the culture war wedge issues,” said Aubrey Jewett, a political science professor at the University of Central Florida.

The details of how DeSantis’ tech plan would be put into action are pending. Florida lawmakers have proposed several social media and privacy bills, though DeSantis’ office declined to take a position before they reach the governor’s desk.

For industry representatives, it’s clear DeSantis “for a while now has decided to inject big tech into the culture wars,” said Adam Kovacevich, founder and CEO of Chamber of Progress, a tech coalition whose members include Google and Apple. DeSantis views the fight as good politics, even for ideas that are “almost certainly unconstitutional,” he said.

“I don’t think the law will be on his side for many of these things,” Kovacevich said.

Tech Legislation

DeSantis cited tech companies that collect user data without express permission and a lack of transparency from search engines when unveiling his “digital bill of rights” last month. He directed a ban on using TikTok on government devices and on school and government networks. He also proposed preventing state and local government employees from working on content moderation with social media sites.

The plan includes giving consumers more rights over their personal information online, including the ability to opt out of having their data shared or sold, which follows state laws supported by both Republicans and Democrats in recent years. Those changes and additional safeguards for children would help rebalance the power held by online platforms, DeSantis said.

“We’ve got to fight back and provide protections for individual Floridians,” he said.

Google, which DeSantis named as part of his search engine proposal, did not respond to requests for comment.

DeSantis sets the tone for Florida Republicans, and the GOP-led legislature is likely to advance his priorities, Jewett said. Several social media bills are up for consideration.

Sweeping bills in the House and Senate (H.B. 1547 and S.B. 262) would require companies with gross revenues of over $1 billion a year to implement new consumer privacy rights if they make at least half their revenue from targeted or online ads, or operate smart speakers such as Amazon’s Alexa and certain voice-command services.

Search engines would have to disclose how political ideology influences search results, under the measures. The bills also include content moderation components affecting government employees and would add extra requirements related to children.

Rep. Fiona McFarland (R), who’s sponsoring the House bill, said she’s working with DeSantis on the proposal. With consumer data privacy bills proposed in previous sessions, McFarland’s “hoping this year we’re ready to pass meaningful change for Floridians,” she said in a text message.

Lawmakers of both parties are pushing additional bills aiming to protect children online. A bipartisan proposal (H.B. 591) approved by a House subcommittee would add new requirements for social media sites used by kids under 18, including disclosing their content moderation policies and requiring young users to accept a disclaimer stating the site may harm their mental health.

“To the extent that we are able to do so, we must provide some guardrails,” Rep. Michele Rayner-Goolsby (D), a bill sponsor, told lawmakers March 9.

DeSantis press secretary Bryan Griffin directed questions about the bills to the legislature but said it’s “encouraging to see the legislature taking up these important topics.”

“The governor will consider the merits of each bill that reaches his desk in final form and make a decision at that time,” Griffin said in an email.

Legal Questions

DeSantis’ digital priorities may appear less “blatantly unconstitutional” than Florida’s 2021 content moderation law but pose similar First Amendment concerns, said Chris Marchese, counsel for NetChoice, whose members include Meta and Twitter. NetChoice is suing over Florida and Texas laws restricting how social media sites treat the content on their platforms, among other provisions.

“Ultimately, it’s still the same exact problems,” Marchese said of proposals such as requiring search engine disclosures.

The US Supreme Court will likely weigh in on the content moderation laws after different US appeals courts issued rulings that conflicted on how to treat the online companies. Judges will consider whether tech platforms are more like newspapers that have the right to make editorial decisions free from state interference or common carriers required to exercise neutrality, said Lyrissa Lidsky, a constitutional law professor at the University of Florida.

“There’s an open legal question there for sure,” Lidsky said.

The state can’t benefit or burden speech because of its content, and content-based laws receive the strictest level of scrutiny, Lidsky said. The constitutionality of this year’s proposals in Florida will come down to the specific legislative language, she said.

“The devil’s always in the details when it comes to statutes,” Lidsky said.

NetChoice is also alleging in a separate lawsuit that California’s kids privacy law known as the Age-Appropriate Design Code Act is unconstitutional, reflecting a “bipartisan appetite for controlling online speech and the online experience,” Marchese said. The public should be wary of handing the government too much power over social media, he said.

“You don’t want the internet to keep switching depending on who’s in power,” Marchese said.

‘He’s a Fighter’

For DeSantis, the legal outcomes may not matter much to his voters, Jewett said. His Big Tech priorities fit into a pattern of highlighting an enemy and attacking it, and most supporters won’t read all the details, he said.

“They like DeSantis because he’s a battler, he’s a fighter,” Jewett said.

Legislation the governor has pursued in the past few years appears as much designed for Republican primary voters as Floridians, Jewett said. He’s pitching other proposals this year that will also likely go over well with a national audience, he said.

DeSantis, for instance, has called for defamation law changes and argued for the need to boost media accountability. Bills in the House (H.B. 991) and Senate (S.B. 1220) would weaken protections used by journalists, among other changes, which represent a radical departure from the Supreme Court’s enhanced First Amendment protections with the 1964 New York Times Co. v. Sullivan decision.

A successful law lowering those standards could spark review by the US Supreme Court. DeSantis’ office did not take a position on the legislation.

To contact the reporter on this story: Brenna Goth in Phoenix at