IV. Policy
Considerations
DeSoc apps
present many questions for U.S. policymakers, some rooted in
conventional concerns about social media and others related
to the use of crypto and blockchain technologies. DeSoc apps
raise concerns about the potential spread of misinformation
and propaganda, and the liability, if any, of decentralized
protocols for illegal or harassing speech. They also lack
regulatory clarity as to whether some tokens constitute
securities, the application of data protection and consumer
disclosure requirements, and the tax implications of token
transactions.
DeSoc apps,
like all decentralized apps built on blockchain technology,
have the ability to increase freedom and opportunity around
the world. At its core, blockchain is a breakthrough
technology that allows individuals to directly share
information peer to peer, and has ushered in multiple use
cases that benefit from the technology’s efficiency,
transparency, and accessibility. In an onchain world,
transparency and trust are built into decentralized
protocols themselves, and these protections will only grow
as the technology develops. Therefore, lawmakers and
regulators concerned about social media should focus their
efforts on centralized actors, where additional transparency
and disclosure are needed.
For
example, Section 230 of the Communications Decency Act of
1996 generally shields tech companies from liability for
content published by users. The law was designed
specifically to “encourage
the development of technologies which maximize
user control over what information is received
by individuals” on the internet.
Decentralized protocols are designed to ensure this exact
outcome. By facilitating direct peer-to-peer exchange of
information without a potentially liable third party, some
have posited that DeSoc networks can “achieve
the policy goals of Section 230”
without a need to enforce the law itself.
As the U.S.
Supreme Court recently noted in Twitter,
Inc. v. Taamneh, social
media platforms do not associate themselves with harmful
content merely by creating a platform for speech or by
employing software programs that match content with users
based on their preferences. Although the Court’s decision
did not touch on decentralized networks specifically, it
underscores the lack of liability for platforms that merely
facilitate information exchange through software that is
“agnostic as to the nature of the content.”²
A second,
more controversial provision, Section 230(c)(2), allows tech
companies to censor material in good faith if they find it
objectionable, even if the relevant speech is protected by
the First Amendment. Here, too, DeSoc can provide an answer
to critics of this permissible moderation: the lack of
centralized moderators means that no single authority can
ban content from a network; no one “instance” or site
controls the content on another site, and users who feel
their speech is threatened can easily transport their
content and followers to a different site.
It will
still be necessary, however, for DeSoc protocols to prevent
the proliferation of certain types of illegal speech, such
as copyright infringement, classified materials, and
terrorist recruitment. While many DeSoc protocols employ
some type of moderation system that can address such
content, the immutability of the blockchain makes it
difficult or impossible to remove illegal content once it
appears on-chain. This problem, which has not been
widespread but remains unresolved, has led some to suggest
filters on blockchains that prevent the introduction of “unwanted
data” in the first place. But any
solution should ensure that the blockchains themselves
remain permissionless and immutable, while decentralized
apps built on top of these blockchains innovate to achieve
the necessary legal compliance.
Apart from
free speech concerns, the lack of regulatory clarity
surrounding crypto technology generally, including DeSoc
apps, risks hampering innovation and adoption. Recent
studies show that while the blockchain development ecosystem
is growing, the U.S. is steadily
losing market share of developers
and capital investment to other countries that provide a
greater regulatory clarity. As Koinmex has previously explained,
the U.S. must embrace its historical approach of welcoming
innovation while managing risks, rather than pushing new
technology offshore.
Regulators
could both foster DeSoc innovation and protect consumers by
developing a comprehensive regulatory regime for crypto
assets generally, including those that make up a crucial
part of the governance and rewards systems of DeSoc apps.
Much-needed rules would clarify issues related to securities
law, disclosure requirements, and the tax treatment of
various crypto assets. Further, Congress could support
innovation of DeSoc protocols by passing legislation that
recognizes and protects their decentralized structure.
¹ Fabri.
"Lensverse
Ecosystem Applications", January 10,
2023.
² Case No. 21-1496, at 23 (S.Ct. May 18, 2023).