The “Brussels Effect” describes how European Union (EU) regulations extend far beyond the continent, reshaping business practices worldwide simply because companies want access to its massive markets. Americans enduring endless cookie popups online can thank an Eurocrat for that. Similarly, California’s rules now ripple outward, a phenomenon dubbed the “Sacramento Effect.” These aren’t just regulatory trends – they are ideological ones. Europe’s technocratic approach has asphyxiated its own tech sector, and California, home to the world’s leading technology hub, now seems bent on squeezing the oxygen from the lungs of its greatest industry.
As states nationwide – including Michigan – consider myriad new proposals to regulate new technologies, lawmakers have begun not only to copy the policy prescriptions of Brussels and Sacramento but to imbibe their ideological mistakes and misconceptions of technology and the rule of law. Last month, the Michigan Senate’s Committee on Finance, Insurance, and Consumer Protection considered a slate of proposed digital regulations: Senate Bills 757, 758, 759 and 760. These bills, advanced as means to protect children, spring from the best of intentions. But they are unlikely to achieve their stated aims and, because they rest on dubious assumptions, may well damage the interests of Michiganders, adults and children alike.
These bills purport to be commonsense measures to ameliorate difficulties caused by digital technologies. Their provisions would extend far beyond that mandate, imposing oppressive requirements that are likely to hamstring innovation and to degrade the quality of the everyday digital services on which Michigan’s users rely.
At root, these bills betray a misunderstanding of the basic nature of commerce in the digital world. Asked about the meaning of “addictive” as it applies to social media, Sen. Darrin Camilleri (D-4th District), the sponsor of SB 757, said: “You find an interest in one particular item on your social media feed…it can continue to give you that type of material that you’re looking for and send you down the rabbit hole for hours and hours on end.” If Camilleri meant that social media platforms attempt to provide their users with relevant content to ensure they remain interested, his contention is true, but unexceptional, proof of nothing. All businesses attempt to give their customers more of what they want. This is true as much for retail outlets and grocers as for the entertainment industries, such as traditional media and social media. Businesses strive to provide products that customers value. But this fact of life is far from “addiction” in the word’s common sense. Indeed, Camilleri’s standard would deem every business in the history of world to be designed to be “addictive.”
SB 758, which resembles a 2022 California statute largely enjoined by a federal judge, commits the same error. It would regulate any design feature “that is designed primarily to encourage or increase the frequency, time spent, or activity of a user on the online service” (emphasis added). This could apply even to services that pose no danger to children. In short, if a digital service offers a product that users like—a product that incentivizes them to use the service—it would be subjected to SB 758’s onerous provisions. Deprecating ordinary business conduct with vague allegations of sinister conduct is no basis for a system of digital regulation.
In his essay “Politics and the English Language,” George Orwell cautioned against using “meaningless words”: words used so imprecisely that they either become deceptive or mean nothing at all. “[T]he slovenliness of our language makes it easier for us to have foolish thoughts,” Orwell wrote. Using the word “addictive” to mean something other than what it means literally creates misperceptions about the nature of the digital economy and, in turn, ill-conceived legislation predicated on those misperceptions.
Michigan lawmakers ought to ensure their premises are true. Only then will they be able to reach the proper conclusions about the proper way to pursue digital regulation. The infiltrations of Brussels and Sacramento must be resisted.
