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After Roe, what happens when the rules for online speech are different in each state?

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3d hands holding a cell phone and pointing to the screen.

After the Supreme Court overturned Roe versus Wade, many states took action on either protecting the flow of online information regarding abortion, and other states moved to introduce bills restricting that digital communication. Getty Images

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Since the Supreme Court overturned Roe vs. Wade back in June, many states have been working on new laws related to digital privacy and access — or restricting what kind of information can be shared online. This trend highlights the increasing disparity between states in terms of what’s legal online and what might be in the future.

Marketplace’s Kimberly Adams speaks with Matt Perault, director of the Center on Technology Policy at the University of North Carolina, Chapel Hill, and a consultant on technology policy issues.

He wrote an essay for Wired on what might happen when the rules for what you can say and do online are different from state to state. Perault said this kind of digital fragmentation is a relatively new concept in the United States, but some people already know what it’s like. The following is an edited transcript of their conversation:

Matt Perault (courtesy of Hunter Stark)

Matt Perault: It’s common practice now for many users, even including Olympians or company executives, when they travel to a place like China, they travel with a burner phone, a phone that’s wiped free of any data, because they understand that the laws are going to be different in China than they are in the United States. It’s not yet common to experience different laws in one state from another. All of a sudden, we will have different rights online in some set of states versus another. That to me, I think, is a form of a digital civil war. It’s a form of digital secession, where your rights are determined by the state in which you live. And we haven’t really seen that within the United States in the kind of way that I think we’re about to.

Kimberly Adams: I keep thinking about physical mail. That’s federally protected. But online communications across state lines, based on what you’re laying out here, seem to be falling into a different category.

Perault: So I think you’re exactly right. So if Congress passed a law on these issues, that federal law would trump state law. That’s a constitutional principle that it would. The challenge is that Congress hasn’t been very successful in figuring out how to regulate the tech sector. It’s also possible that courts might be our savior to some extent, because states can’t pass laws that are unconstitutional. They can’t pass laws that violate the First Amendment, which protects freedom of speech. And they can’t violate the Fourth Amendment, which protects privacy. So it’s possible that federal courts will intervene in ways that will end up protecting users’ rights. But it will probably take a period of time for that to happen.

Adams: Recently, South Carolina introduced a bill that would criminalize any form of online flow of information about abortion. But the state’s governor came out and said that bill would “never see the light of day.” You’re laughing. Why?

Perault: Well, I guess for a couple of different reasons. I mean, obviously, that bill is going to present constitutional challenges. So anything that violates the First Amendment, protections on free speech, is going to face serious headwinds in court. But I also was laughing because it’s not just the federal government that struggles to reach consensus on what the right rules should be. State governments will face those challenges as well. The reason that I think there is this acute risk of fragmentation is that states have tended to be more effective in passing tech policy than the federal government. There’s no filibuster at the state level, so it’s easier for legislation to get through. And there are more states that have a unified government where Republicans or Democrats control all of the legislature and are in the governor’s mansion. And that makes it a little bit easier to get laws out the door. So I think that’s part of the reason we’ve seen states be more successful in areas like privacy and developing state-level privacy laws than we’ve seen in the federal government.

Adams: What’s the role of social media companies and, I guess even email providers, websites and online service providers, as states continue to pass these laws regulating the flow of information, not just within their states, but across state lines?

Perault: I think it’s going to be very challenging for tech companies. Tech companies are going to be caught in the middle of this digital civil war. And that’s going to mean that their compliance costs are going to go through the roof. They’re going to need to have lots of lawyers on hand who are going to advise them on what laws they might be in violation of, and how to ensure that they can comply with state laws. And that patchwork among states, among 50 different possible state laws, is going to be really complicated and require a lot of expertise for them to figure out how to navigate it. The challenge is going to be particularly acute for smaller companies, because they’re going to have fewer resources to put into this sort of compliance regime.

And for smaller companies, any resources that they divert from building their business and building their products, instead put into legal compliance, is going to make it harder for them to compete with larger and more established tech companies. I also think it’s going to be really hard for the brand value of tech platforms. We’ve seen, I think, in the last several years that when tech companies are caught in the middle on these social issues, they try to please everyone, and they end up pleasing no one. And so when they’re caught between California and Texas, trying to figure out “which law do we comply with? And how do we navigate this narrow pathway where we’re obligated to provide data by one state, and we’re obligated to not provide that very same data by another state?” That’s really challenging for tech companies to figure out how to navigate that tension. And I think it’s unlikely to be favorable for many tech companies. It’s going to be really challenging for them to figure out how to run their businesses.

Adams: What would this potential digital civil war look like to your average online consumer?

Perault: So I think people will have to think about what legal regime is going to apply to them when they travel throughout the United States. I think that’s going to be unbelievably confusing for internet users. I think it’s going to present really complicated challenges that are really hard to sort of think through, anticipate what they’re going to feel like in the future. Like, what if you store not just your own data on your phone but friends’ data? So what if messages that you have with a friend might implicate their own rights, and when you travel into a different jurisdiction those messages which implicate your friend’s rights all of a sudden might be available to law enforcement authorities?

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