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Utah Business

A free speech amendment could bring unintended consequences for Utah’s tech companies

In today’s digital age, social media is no longer just for selfies and cat videos. It’s become a battleground for all the prickly stuff—polarized politics, divisive social issues, misinformation, and disinformation. While some people support social media platforms tamping down what they deem harmful, dangerous, or untruthful, others believe in a free-for-all town square. 

The fight for what constitutes free speech and how that plays out in our digital era is at hand. One Utah senator has been trying his darndest to put something on the books to define it, but the problem is, it’s like tuna fishing. Casting a wide net tends to snag the dolphins right alongside the albacore. 

A tale of two bills

Last year, Utah’s tech industry was at risk of being swept up as collateral damage to SB 228. The Electronic Free Speech Amendments bill, sponsored by Sen. Michael K. McKell, sought to protect Utahns from overreaching social media censorship. The bill passed the state Senate and the House but was vetoed by Gov. Spencer Cox

Sen. McKell modified his approach on the issue in the 2022 legislature with his recrafted SB 198. This time, the bill got shelved in the Senate. 

During SB 228’s 2021 journey from proposal to veto, Utah’s tech industry noticed that the bill could have negative consequences for many of the state’s thriving tech companies. “This got on our radar primarily because of the way that social media was defined in the bill, defining it as a platform where there’s user-contributed content,” says Sunny Washington, CEO of Utah Tech Leads, a non-partisan association and political action committee representing Utah’s tech companies. “That’s so broad. The concern was that so many companies would fit that description that we would never call social media.” 

For all intents and purposes, a lot of tech companies call their product a “platform,” Washington says. “So many companies like Salesforce, or Instructure’s Canvas, or even Podium—they’re not social media platforms, but the bill would essentially define them as such.”

Elizabeth Converse, Utah Tech Leads executive director, says these kinds of bills popped up all across the country the first time Sen. McKell took the bill through the ‘21 legislative session. “We lovingly refer to them as the anti-Facebook bills because that’s essentially what they are,” she says. “They redefine what social media is and what acceptable terms of service are. They take away rights for those social media platforms to define what they think is the best for their companies and their users, which was a really interesting shift away from the pro-business state that we are.”

Sen. McKell worked hard on SB 228, Converse says, but it eked by the House on a vote of 39 to 35. “You have to have 38 votes in the House to pass anything, so he got one more than the necessary amount of votes. A lot of people weren’t too happy with it, and it did pass, but then Gov. Cox vetoed it,” she adds.

Gov. Cox’s official statement explains the SB 228 veto was “with consent from the Senate President, Speaker of the House and bill sponsors. After conversations with the legislative and executive branches, this action was jointly determined as the best path forward due to technical issues. Censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.”

“The sponsors of this bill have raised valid questions about the impact social media platforms can have on public discourse and debate…While I have serious concerns about the bill, I appreciate the willingness of the bill’s sponsors to continue to seek a better solution,” Gov. Cox’s quote continues. “Utah must be a leader in this space, and I look forward to engaging with legislators and social media companies to address these legitimate concerns.”

Let’s try that again

In 2022, Sen. McKell went back to the drawing board with SB 198. “This most recent year, the bill was so dramatically different, that’s where we stepped in,” Converse says. “Utah Tech Leads represents the vast majority in the tech industry in Utah. It’s our job to find and flag those pieces of legislation.” 

Converse says Utah Tech Leads was actually significantly more comfortable with the version of the bill that Sen. McKell passed in 2021. “[SB 228] was different enough that it was all-hands-on-deck, making sure everybody knew exactly what the definitions were and where we could go from here—essentially what the community proposes instead so that the entire community isn’t all of a sudden labeled in Utah state law as a social media company.”

Converse explains that the latest bill would have impacted far more tech companies by lowering the threshold on the number of “users with user-generated content” from tens of millions in SB 228 to just 1 million in SB 198. “So if you have a company like Qualtrics, where you’re creating your own content through their platform of surveys, if there are 1 million people who have ever logged onto Qualtrics, you could be penalized,” she says.

Another issue was the unclear use of the term “users.” “We had these discussions: Does ‘user’ mean they live in Utah? Or if they’re on a layover at the airport and they access the platform, does that count as a user?” Washington says. “There were so many things that were unclear to us that we really saw problems just by ‘user’ being so broadly defined. Thankfully, Sen. McKell worked with us and pulled the bill, but we anticipate it will probably come back again.”

Because this is a potentially high-impact issue for many of Utah’s tech companies, it’s surprising to see some of the quotes from the Utah Senate discussion of SB 198. The Salt Lake Tribune reported that Sen. Dan McCay, who was voting to move the bill out of committee despite its flaws, said, “I’m really looking forward to this fight on the floor between Sen. Weiler and Sen. McKell. Maybe we’re moving too quickly through bills, but this adds some value from a voyeuristic standpoint.”

Responding to that quote, Washington says, “From my standpoint, I was like, ‘What if it passes and this is all for entertainment?’ That was concerning for me because this bill has real implications on companies not only from a development standpoint but also potentially fines that could be assessed if there was a violation.”

In the future, Utah Tech Leads anticipates further bills and discussions on the topics of free speech and social media, which they welcome. The organization does recommend proceeding with caution to protect free speech while also protecting the growth of Utah’s tech industry, which includes more than 65,000 companies generating $6 billion in wages and employing more than 300,000 workers.