Over the past 10 years, the primary threats to US internet freedom have come from abroad, as countries like China, Russia, and India have erected barriers to the flow of information. In the wake of the Supreme Court’s decision overturning Roe v. Wade, however, the biggest threat to a borderless internet now comes from within the United States.
Already, state legislatures are laying the groundwork for digital secession that will carve up the rights that are now commonplace for internet users. We are on a path to a digital civil war, where blue states and red states create different rules to govern the internet, with conflicting laws on speech and data privacy. And it will be a compliance nightmare for platforms and users alike. The end result will be worse products, more concentration in the tech market, and reduced rights online.
The battle lines are already being drawn. In South Carolina, for example, the Republican legislature is considering a bill that would criminalize “hosting or maintaining an internet website … that provides information on how to obtain an abortion.” Democrats, on the other hand, are trying to stop platforms from censoring information on how to obtain a lawful abortion. Senators Amy Klobuchar and Elizabeth Warren wrote a letter to Meta expressing concerns about the company’s removal of abortion-related posts.
Republicans across the country are seeking to ensure that states will be able to access data from tech platforms that will help them prosecute cases under state law. Democrats, meanwhile, are pressuring companies to resist these same data requests. In July, a group of Democrats wrote a letter to Oracle and Amazon Web Services seeking clarity on how the companies planned to protect data that could be used in state prosecutions. Other Democrats have focused on how data brokers might sell the location data of people who visit abortion clinics to law enforcement authorities. And in September, the California legislature passed a law that will prevent companies in the state from disclosing information in abortion-related investigations by out-of-state law enforcement authorities.
All of these legal maneuvers will create fundamentally different rights for internet users based on the state they live in. Imagine taking a flight from New York to Florida. While you’re on the runway, you might post a video on Twitter, but find that you can’t see your tweet or comment on it when you land. Or the private data you stored on your phone in New Mexico might have to be turned over to law enforcement authorities after you drive into Texas. When you travel across state lines, your rights online—and the risks you face from what you click on, what you post, and how you store information—will change.
The fear of a balkanized internet has always been that it would undermine universal human rights like freedom of expression, reduce economic and social mobility in countries that cut themselves off from the rest of the internet, slow down innovation, and reduce competition. As Freedom House has documented in its annual State of the Net report, those fears have become reality in places like China, Myanmar, and India. If this balkanization occurs within the United States and the challenges of legal compliance magnify for both companies and users, the fragmentation will likely erode rights here as well.
Tech platforms will tangle themselves into a rat king trying to enforce their terms of service across states with different legal requirements. If a user posts something legal in one state and illegal in another, How does a platform decide whether the post can stay up? What if one state government requires platforms to disclose the contents of a text message exchange, and another state government prohibits a platform from providing that data? If two people from different states communicate with each other online, and the laws of the two states conflict, which law applies?