Big Tech Companies in the US Have Been Told Not to Apply the Digital Services Act

Trouble is brewing for the Digital Services Act (DSA), the landmark European law governing big tech platforms. On August 21, the Federal Trade Commission (FTC), sent a scathing letter to a number of tech giants, including Google, Meta, Amazon, Microsoft, and Apple. The letter's subject: the European Digital Services Act cannot be applied if it jeopardizes freedom of expression and, above all, the safety of US citizens.

The opening of the letter—signed by FTC chairman Andrew Ferguson—features a prominent reference to the First Amendment of the US Constitution, namely freedom of speech: “Online platforms have become central to public debate, and the pervasive online censorship in recent years has outraged the American people. Not only have Americans been censored and banned from platforms for expressing opinions and beliefs not shared by a small Silicon Valley elite, but the previous administration actively worked to encourage such censorship.”

The Trump Administration's Lunge

The Trump administration intends to reverse course, and it is in this direction that the attack on "foreign powers," the European Union and in the United Kingdom, and in particular on the Digital Services Act and the Online Safety Act, begins. The letter also indirectly references GDPR, the European regulation on the protection of personal data, whose measures are "aimed at imposing censorship and weakening end-to-end encryption" with the result of a weakening of Americans' freedoms, according to the letter.

Privacy and End-to-End Encryption: The Issues on the Table

In the letter, the US Antitrust Authority specifically asked the 13 companies to report "how they intend to comply with incorrect international regulatory requirements" (the deadline for scheduling a meeting was set for August 28) and recalled their "obligations towards American consumers under Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices" that could distort the market or compromise safety.

And it is precisely on the security front, and especially on the adoption of end-to-end encryption, that the FTC calls big tech companies to order: "Companies that promise that their service is secure or encrypted, but fail to use end-to-end encryption where appropriate, may deceive consumers who reasonably expect this level of privacy." Furthermore, "certain circumstances may require the use of end-to-end encryption, and failure to implement such measures may constitute an unfair practice." The weakening of encryption or other security measures to comply with laws or requests from a foreign government may therefore violate Section 5 of the Federal Trade Commission Act, the document states.

What Happens in Case of Disputes and Interference

In a tweet on X, Ferguson wrote flatly that "if companies censor Americans or weaken privacy and communications security at the request of a foreign power, I will not hesitate to enforce the law."

"In a global society like the one we live in, overlaps and interferences between different legal systems are natural. Just think of those, in the opposite direction, between European privacy legislation and the famous American Cloud Act," Guido Scorza, a member of the Italian Data Protection Authority, told WIRED. Scorza believes that in the event of significant discrepancies, “it will be up to the US government and the European Commission to identify corrective measures capable of guaranteeing the sovereignty, including digital, of each country.”

This article originally appeared on Wired Italy and has been translated from Italian.