In advance of the ITIF event I’ll be speaking at on July 8th, ITIF has released a think piece explaining the GRANITE Act’s proposed approach for America to deal with foreign censorship.
Highlights:
In response to this problem, the Wyoming House of Representatives passed the Guaranteeing Rights Against Novel International Tyranny and Extortion (GRANITE) Act, legislation designed to protect U.S. firms and individuals from foreign censorship. The GRANITE Act creates two tools.
The first, the “shield,” bars Wyoming courts from recognizing or enforcing foreign judgments that attempt to regulate constitutionally protected speech on U.S. platforms. This provision draws on the federal Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) Act of 2010, which prevents U.S. courts from enforcing foreign defamation judgments that do not meet First Amendment standards, but extends it from defamation to the full spectrum of foreign censorship. Of course, the shield has significant limits. A Wyoming court ruling will only apply within the state. It will not stop a foreign regulator from fining or threatening U.S. platforms operating abroad.
The second tool, the “sword,” creates a right of action allowing individuals and businesses to sue and collect damages from the foreign officials, regulators, and governments that threaten or enforce censorship. Damages start at $1 million per violation, or 10 percent of the defendant’s U.S.-related revenue, whichever is greater. However, this provision faces a big challenge. The Foreign Sovereign Immunities Act (FSIA) grants foreign governments immunity from suits in U.S. courts, and the International Organizations Immunities Act (IOIA) extends equivalent protections to bodies like the European Commission. Under the Supremacy Clause, Wyoming cannot override either statute.
Congress could address this problem. By amending FSIA to carve out a specific exception stripping immunity from foreign regulators, Congress could open them to lawsuits in U.S. courts. Once the FSIA amendment is in place, the case for reforming the IOIA to address the European Commission’s immunity will inevitably follow.
And:
The GRANITE Act shows that the United States does not have to accept foreign censorship as a cost of doing business. Instead, policymakers can send a message that foreign laws targeting free speech on American platforms will face repercussions. When democratic governments impose content restrictions on American platforms, they legitimize China’s digital strategy, one built on controlled speech and one that systematically erodes the open Internet that gives the United States its strategic edge. In an era of technological competition with China, a free and open Internet is a necessity, and Congress should defend it.
Read the whole thing.