Social media oversight bill fails in Senate Committee

A bill that seeks to put social media oversight under the state Public Service Commission’s purview was tabled by the Senate Energy and Telecommunications Committee this week, bringing an apparent end to the measure.

Proponents of Senate Bill 391 argued that regulating Big Tech is necessary to prevent unfair censorship of political speech, while opponents argued it would be logistically difficult and ideologically inappropriate to police private companies. All five Democrats on the committee and four of its nine Republicans voted to table the measure shortly after the bill’s hearing.

Sen. Theresa Manzella, R-Stevensville, is sponsoring SB 391. She told the committee Thursday afternoon that she brought the bill because she thinks platforms like Facebook have become monopolies that unfairly and indiscriminately censor users.

Manzella referenced former President Donald Trump’s removal from social media platforms in her remarks.

“That’s a big problem when the president of the United States can’t have a presence on social media,” she said.

SB 391 lays out a process for a person who feels unfairly censored by a software provider to seek recourse. First that person would approach the company in question and try to resolve the dispute without involving the PSC. If resolution isn’t reached, the petitioner could then bring a claim to the PSC, which would be required to issue an order within 30 days of a hearing. If the PSC finds the software provider is out of compliance with the order, it could fine the company up to 1% of its gross revenue for the duration of its noncompliance.

The bill has had a polarized reception. A legal note issued last month suggesting that the bill could run afoul of federal legislation elicited an unusual claim that the Legislature’s legal services staff had provided “fake legal advice.”

A similar measure sponsored by Rep. Brad Tschida, R-Missoula, narrowly failed on second reading in the House last month, but Manzella told committee members she felt her bill was in a stronger position to advance because it had the PSC’s support. On March 23, the PSC voted 3-2 to support SB 391.

Randy Pinocci, who’s served on the PSC since 2018, was one of a handful of proponents testifying in favor of the bill Thursday. He said he sees social media regulation as a natural evolution of the PSC’s mission.

“When I think about it, we probably should have been doing this about five years ago,” he said. “I’m ready to roll up my sleeves if this Legislature tells me, ‘we want you to do this.’”

The bill’s fiscal note estimates 14 full-time staff positions would be required to implement the bill’s provisions, but Pinocci said he anticipates complaints would moderate once platforms become accustomed to the regulation.

“It’s kind of like a police officer in front of the bank,” he said. “That bank doesn’t get robbed if there’s a police officer in front.”

Maurice Cameron, a Great Falls man who works as a network security analyst, said social media platforms like Facebook and Twitter are “a hacker’s paradise.” Regulatory oversight could help keep Montanans safe from bad actors, he said.

Other proponents spoke of personal and professional frustrations stemming from being kicked off social media or being “throttled” by platforms, restricting access to audiences.

Montana Daily Gazette publisher Jordan Hall and Jim White, who works with Hall and for Northwest Liberty News, described frustration with Twitter, YouTube, Mailchimp and other companies. White said his channel’s views on YouTube have shrunk by 95% during the past two years. Hall said tech companies are “far more interested in stifling political speech than stopping criminal behavior,” and outlined a number of instances when he said his site’s content was censored.

Opponents of the measure argued that the PSC is unprepared to adjudicate free speech issues; that the market, not the government, is best positioned to facilitate the public exchange of ideas; and that government shouldn’t be in the business of telling private businesses what kind of speech they must allow on their platforms.

Patrick Webb, who appeared on behalf of the Montana chapter of Americans for Prosperity, said the internet is still a relatively new technology that’s going through some growing pains. He said that though he sympathizes with SB 391 proponents, he thinks there are more appropriate solutions to the problem they describe.

“The answer is more speech and empowering the market to come up with solutions to solve these problems,” he said. The addition of new platforms, including one reportedly being developed by Trump, is evidence that the market is working as it should, he said. He added that his organization also opposed Tschida’s bill.

Speaking for the trade group Internet Association, Rose Feliciano said the PSC lacks the authority, resources and knowledge to adjudicate disputes.

“These are First Amendment questions, not rate proposals,” she said.

Samantha Kersul, executive director of policy advocate TechNet’s northwest region, made the argument that a restaurant owner would be justified in removing a customer shouting racist remarks in their establishment, and that similar logic should apply to businesses operating in the tech space.

“Seventeen states this year have heard and rejected similar pieces of legislation, North Dakota joining that list just earlier today,” she added.

After a brief recess, the Senate Energy and Telecommunications Committee indicated Montana would join those other states. All five of the committee’s Democrats and four of its Republicans voted to table SB 391.