Today, the State Department sanctioned five European (EU + UK) employees of pro-censorship NGOs which work hand-in-glove with European Internet regulators to censor American citizens.
I thank the State Department for doing so. I’ve been working on the foreign censorship problem for the better part of a decade, and this is the first action the U.S. federal government has ever taken in defense of Americans’ First Amendment rights online from foreign encroachment.
In response, European politicians lost their collective minds. A sample of the hundreds of politicians and others in Europe opining on this issue today:
Et cetera.
First, the Europeans should not be even remotely surprised by the State Department’s actions today. If they were paying attention to the growing American counter-offensive against European censorship (and, for the most part, they almost certainly weren’t) they would have seen this coming a mile away.
Second, this is not a complicated political problem. This is actually a really simple problem, much simpler than any European politician would make it. It has almost nothing to do with President Trump, despite many European politicians trying to make it about the President. Nor does this problem, in its purest essence, have anything to do with the US and Europe’s values diverging – that is simply the set of circumstances which has forced this sixty-year-old question, one the world has never really answered, into very sharp relief.
That question is this: in a world where law is confined to borders, who gets to write the laws of the Internet?
And, particularly, who gets to write the laws for American citizens on the Internet?
The answer to both questions will be the same, but that answer is, for the moment, not yet resolved. There are, and long have been, two competing approaches.
The European approach is that nations will broadly harmonize domestic censorship systems (the EU, the UK, Australia, New Zealand, Brazil, Singapore, mainly) all singing from approximately the same hymn sheet. U.S. companies are then expected to harmonize as well, or be locked out.
Under that theory, this X-operated data center in Tennessee is effectively subject to Europe’s sovereign control:
The alternative approach is that borders have meaning. American companies and American websites follow American rules, and that choice is backed up by American power.
I wrote about this in September. I call this new American doctrine lex loci machinae: the law of the webserver is the law of the website.
For years, nations and tech majors sleepwalked into this problem by muddling along, trying to be in compliance with all national laws at all times, even when the legal requirements American publishing companies were expected to comply with from different countries directly contradicted each other (making true compliance on a global basis impossible), and trying to keep everyone happy and do their best, instead of asserting constitutional defenses along the way -defenses that only a handful of (usually tiny) companies were ever willing to invoke. The strategy of the countries that didn’t have the First Amendment – or any of its competitive advantages – was to try to bring U.S. companies down to their level, to force Americans to compete with their domestic champions on domestic rules that would, comparatively speaking, be disadvantageous for the the Americans.
Their strategy relies on a bluff: that transnational censorship “harmonization,” vis-à-vis the United States, would simply be accepted by the Americans, who, for the sake of simply getting along, would be willing to throw the First Amendment away. “The Yanks rolled over with the GDPR, even though there’s no way we can lawfully enforce the GDPR in an American court,” Brussels and London probably thought. “They’ll over on the Digital Services Act and the Online Safety Act, too.”
The reason Europe is flipping out over the visa bans is that this bluff has now been called, in the most public and spectacular way possible. The moment the U.S. government signaled it would no longer play along, the harmonization model began to collapse.
It’s a new world.
The second America decides to enforce its borders online, and use its power to defend them, the transnational censorship project fails. Relations between states are not ultimately about laws. They are about power. America has more. This means that American lawmaking, such as a federal GRANITE Act, can end this fight for good.
I’ve been eagerly waiting for this day for ten years. It’s why, when the UK called me in 2023 and asked whether my clients would comply with the Online Safety Act, I laughed and replied that they would do so as soon as the UK could successfully invade the United States which, of course, is something the UK is in no position to do.
This is why arguments like “EU law says X” or “UK law says Y” miss the point.
These regimes are attempting to apply national laws to a transnational, or even non-national, protocol. In that domain, laws are silent. Only power speaks.
My prediction is that U.S. countermeasures, of which the recent sanctions were a political warning shot, and not the actual payload, will be sufficient to render the UK Online Safety Act and the EU Digital Services Act dead letters in America.
Now it’s over to Congress to see whether they can deliver.
Postscript
As the attorney for the first four Online Safety Act social media enforcement targets, all Americans, all of whom flat out refused the UK’s orders, I am pleased to have done my small part to force this issue into the open.
Future historians should be careful to note that the continued prosecution of this cross border fight is, for those of us fighting it, absolutely hilarious, given the utter absurdity of the UK’s foray across the American border in the summer of 2025 (a chronology is posted here) that started it all:
