It is judges, not legislators, who will make the technology policy of 2023.

A Congressional standoff on technology policy is giving courts the power to make important decisions, from liability to content moderation.

what’s happening: Technology moves faster than Congress can keep up, and in the absence of new laws, lasting decisions on technology regulation are being made by judges and courts across the country.

driving news; Federal agencies, state governments and lawyers representing various interests are moving forward with cases trying to regulate the tech industry.

• A high-profile example came last week when the Supreme Court heard two major arguments about the liability protections for user content that a long-standing federal law gives technology platforms.

Between the lines; There is broad agreement that this is not an ideal way to define technology policy. Lawsuits are expensive and time-consuming and, frankly, can be muddy.

• Industry and consumer advocates, such as privacy advocacy groups, prefer to see Congress act instead of hoping a court will interpret the current law according to their preferences.

What they say: “As we saw last week in Gonzalez v. Google, even Supreme Court justices don’t know where to go — Congress has said it’s better qualified to make the calls on these critical issues. We agree,” said Carl Holshayer, senior vice president. tech industry advocacy organization Technet told Axios.

• He added, “Instead of a system that takes years, costs a lot of money and resources, and is often inconsistent with all parties involved, Congress must fulfill its constitutional duty to enact laws, and in some cases update them as necessary.”
• “As the courts wrestle with Section 230 and First Amendment issues, Congress can work to address other critical digital policy issues, such as ensuring consumers have basic federal privacy protections,” said Matt Schruers, president of the Computer and Communications Industry Association’s technology advocacy group. Axios.

The big pictureCongress missed a big chance to pass comprehensive technology policy legislation last year before Republicans took control of the House of Representatives. With the Senate still in the hands of Democrats, compromise will be more difficult — making the courts’ role even more important.

These are the most important technology policy battles right now Playing in American Courts:

• Gonzalez vs. Google and Twitter vs. Do You Believe in the Supreme Court? Congress has been talking for years about making changes to Section 230 of the Communications Decency Act, which prevents tech platforms from being held accountable for users’ postings, but the Supreme Court was the first to strike down the law. A decision to tighten this key internet rule is due in early summer.
• NetChoice v. Moody/Paxton: Republicans in Congress have argued for years that social media platforms stifle free speech, while Democrats argue that they can do more to limit harmful content. Neither party has been able to do much about these grievances at the national level. But Republican leaders in Texas and Florida have introduced laws to force forums to contain certain types of speech. Those laws are being challenged by tech groups, and the cases could be heard by the Supreme Court.
• Social Media Multidistrict Litigation: Earlier this month, a major complaint with at least 125 plaintiffs was filed against Instagram, TikTok, Snapchat, YouTube and Meta, alleging that the platforms are designed to exploit and keep young users engaged, leading to mental health problems and instances of suicide. The Court’s finding that technology platforms have designed and are liable for harmful, addictive products far exceeds Congress’ efforts in these matters.

• Federal and state antitrust cases against Google: Three suits are playing with Google; Two about ad technology and another about search competition, even as the search competition landscape shifts with new AI-driven conversational interfaces. Those issues will take years to resolve, but they still hold the potential for action — the last Congressional effort to pass major antitrust bills affecting Google has finally fizzled.
• The FTC charges: The FTC has been urged to pass new privacy and antitrust laws, but in the absence of legislation, the agency under Lina Khan is trying its hand at blocking mergers in court. The first high-profile case the agency fought, Meta’s acquisition of virtual reality fitness startup Insight, ended in defeat, but Khan is expected to press more cases.

What to see: Court decisions that anger the public or frustrate companies can stop Congress in its tracks.

• In the Google v. Gonzalez case in particular, the justices may ask Congress to clarify content liability laws, Ben Sperry, associate director of legal research at the Center for International Law and Economics, told Axios. Inspiration will be fun.