Category: Ofcom

Background.

Earlier this evening, my learned friend Jonathan Hall KC, the UK’s Independent Reviewer of Terrorism Legislation, had this to say about the escalating row between the United States and Europe/UK over who gets to write the rules of the road for the Internet:

As many of my regular readers will know, I have been in an approximately 11-month battle to keep the UK’s telecommunications regulator, the Office of Communications or “Ofcom,” off the grass here in the United States. Since August I have been joined by my co-counsel Ron Coleman in our client 4chan’s case against Ofcom in the D.D.C. For the most part, for most of 2025, this fight has been a niche issue only focused on by highly technical policy elites on both sides of the pond – people who deal with cross-border censorship and mutual legal assistance issues for a living.

The European Commission’s decision to fine X EUR 120 million on Friday dragged that discussion into the spotlight of mainstream U.S. political discourse. The news was a political earthquake:

The issue is that what the E.U. frames as a “transparency” or “consumer protection” intervention – which it may well be under European free speech jurisprudence – falls squarely within the boundaries of constitutionally protected speech in the United States under American free speech jurisprudence. The EU specifically complains about (a) the blue check mark and (b) X’s refusal to allow “researchers” – read, critics affiliated with academic institutions – access to its data, presumably for the purpose of writing hit pieces on X and calling for more censorship regulations on that platform.

The GRANITE Act would put a stop to that. The remainder of this post assumes familiarity with GRANITE as proposed and filed in Wyoming. That particular proposal was inspired by two things:

• First, existing law in the United States. There are precedents in the U.S. for GRANITE-like tools to protect Americans from sovereign power being used to intrude on their civil rights. See 18 U.S.C. § 242 – deprivation of civil rights under color of law. The Wyoming GRANITE Act essentially places European governments on the same footing as the US government itself, albeit with greater deterrent effect; and
  
  
• Second, we knew what obstacles there were in seeking a remedy to foreign abuses of Americans’ civil rights in anticipated defensive litigation against foreign states seeking to project sovereign power into the United States, namely, sovereign immunity. Foreign censors know this and American free speech lawyers know it, too. For this reason, in the 8 years I’ve been in this line of work, foreign censors have largely felt free to threaten Americans with almost total impunity, an attitude which carried over into their conduct when they were given their new toys in the form of the EU DSA and UK OSA. It is necessary to alter the balance of power in these lawsuits, so as to make attack more costly than defense (currently attack is almost zero-cost and defense is very costly), to deter further foreign incursions.

This second piece of the puzzle is one of the reasons, although certainly not the only reason, 4chan sued Ofcom in the D.D.C., where Ofcom asserted sovereign immunity both in correspondence to my client on October 13th and in a lengthy motion to dismiss last week. Although we will be opposing the other side’s motion to dismiss in due course, and I will reserve comment on their motion and our response for now (you can wait until the docket is updated), I can say that the motion to dismiss on sovereign immunity grounds was expected, and moreover, I strongly suspect their filing was noticed in Washington. I suspect that this was a major driving force behind congressional movement on this issue even prior to the DSA fine issued against X.

In addition to proposing the law itself, GRANITE ties into that litigation strategy. The 4chan case demonstrates to any attorney reading the docket that trying to fight foreign censorship under America’s current legal regime has a “heads I win, tails you lose” dynamic, where fighting in the foreign forum is suicide (see: Wikipedia) and fighting in an American forum is a seriously uphill battle.

The only solution to the Online Safety Act/EU DSA is U.S. law reform. I have known this to be the case for several years. There are a handful of historical cases where courts have proved an inadequate remedy to a major policy problem and, sometimes, after illustrating the nature of the issue in litigation, the legislature can be convinced to move off the plate. The closest historical analogues to this aspect of the 4chan situation are both free speech cases: first, Stratton Oakmont v. Prodigy and its role as an impetus for the creation of Section 230 of the Communications Decency Act, and second, Mahfouz and Ors v. Ehrenfeld and Anor and how that English case led to the enactment of the SPEECH Act in the United States.

Litigation helped to illustrate the problem. Hopefully, legislation will now fix it.

For my UK colleagues, a conceptually similar case (in terms of the litigation-to-legislation pipeline) relating to a very different set of issues in your history was Burmah Oil v. Lord-Advocate.

The EU has made a grave miscalculation, and underestimated the political resolve of the United States.

The EU timed its intervention very poorly. If I had to guess about the rationale for its decision, and specifically its timing, the EU likely thought that the United States had not formed a view on laws like the Digital Services Act or Online Safety Act and that a December fine decision would not leave enough time on Congress’ legislative calendar to agree a response, and deploy that response, before the mid-terms.

The only problem with this is, that the United States started its legislative response to foreign censorship practically as soon as President Trump entered office, holding hearings as early as February. I am not going to say what I know about that process, but I have publicly stated on many occasions that as soon as UK Ofcom sent a notice to me, that notice landed in a government inbox same-day.

This has been happening quietly since late Q1. We now have let the world know, through a range of public disclosures, that any future UK enforcement inbound will be published and sent to our government as soon as it is received.

I of course know nothing about any federal process. I am a simple country lawyer from Connecticut and anything to the west of the Hudson River does not exist in my simple, rural, hokey worldview; I could not even find D.C. on a map. I hear dragons and other such mystical beasts live there. What I will say is that my hunch is that the United States federal government is rather further along in its policymaking process than the Europeans think.

So when the EU fined X on Friday, December 5th, it was like tossing a match onto an enormous pile of fireworks that the U.S. had assembled for America’s upcoming 250th birthday in six months’ time. Kaboom.

The Brits were the first to learn this, on December 4th, when Sarah Rogers, the United States Under Secretary of State for Public Diplomacy, dropped a grenade on GB News, in London, confirming that the United States House of Representatives is considering introducing a federal version of the GRANITE Act, a bill that I first proposed in mid-October which Deputy Secretary of State Colin Crossman converted into aforementioned now-filed bill in the State of Wyoming. 

The Wyoming bill that has been publicly posted is v3; the text has been extensively updated since, and there will be amendments in the bill which appears publicly on the Wyoming legislature’s website shortly.

New Hampshire is also, slowly but surely, advancing a parallel effort.

Missouri Senator Eric Schmitt, a staunch free speech defender in our legislature’s upper chamber, confirmed that he, too, is working on legislation of his own on this theme in the United States Senate:

What “federal GRANITE” actually means right now.

Of course, we’re not done fighting here – not yet. We need a bill and it needs to be enacted. Everything will depend on the content of the final bill Congress actually proposes, and, having not seen that bill, I have absolutely no clue what Congress intends to do. I’m just a simple country lawyer, as I said.

I am hoping the fact that they borrowed the name “GRANITE” is a useful hint. But even without seeing the bill text, it seems clear to me that the Executive Branch and both Houses of Congress seem fairly aligned on the question of whether foreign censorship is a major strategic concern for the United States, and fairly aligned on the proposition that it needs to stop.

Under Secretary Rogers’ announcement last Wednesday that the GRANITE Act was under consideration by the House came to me as a complete (and very pleasant) surprise – it’s not often that a blog post gets converted into a federal bill and then publicly named by the State Department in under sixty days – and I hope like hell the U.S. government can see it through and get something substantially similar to what Colin wrote for Wyoming over the line as quickly as possible.

The question every tech lawyer in the North Atlantic Treaty zone is asking themselves today, of course, is, “what the fuck happens next if this thing passes?” As the originator of the idea and one of the co-authors of the Wyoming bill (although primary drafting credit for the state bill text belongs to Colin, who has been working on it furiously for the last three weeks), I feel that now might be the time to chime in to this discussion in something longer than tweet-format.

Because we don’t know what “federal GRANITE” is yet, let’s assume for the purposes of this discussion that the federal GRANITE reportedly under consideration is essentially a line-for-line clone of the Wyoming GRANITE Act that makes consequential amendments for federal actors and abolishes sovereign immunity for foreign censors under the federal Foreign Sovereign Immunities Act (FSIA) and the International Organizations Immunities Act (IOIA).

That way, when federal GRANITE finally drops, we can run a diff and update the analysis.

The GRANITE Act is designed to be a deterrent: a defensive, not offensive, weapon.

I agree with Jonathan Hall KC that individual punishments – sanctions targeting politicians and individual civil servants – are not the way to go. That’s why I proposed GRANITE the way I did, and why the bill form of GRANITE is written the way it is. I have lots of friends in England. Some of them work for the government. Some of them are even reasonably senior in the civil service. Just because Parliament is currently full of jackasses doesn’t mean that everyone who works for the state is also a jackass.

One of the merits of the GRANITE proposal is that it is not punitive – not initially. GRANITE draws a red line around what the United States regards as its sovereign domain on the Internet, in accordance with domestic law. GRANITE immunizes anyone operating inside the line, prohibits a state agency from cooperating with a foreign government to interfere with anything inside the line, and provides a thermonuclear penalty for any foreign sovereign that dares to cross it.

GRANITE would not, on the day it is enacted, train its sights on the Europeans or the UK – we don’t do ex post facto law in the United States, so anything that’s happened to date between the European Commission/Ofcom and American citizens is, legally speaking, going to be water under the bridge. GRANITE draws a line in the sand, and the “civil damages turbolaser” it creates will not activate unless and until a foreign sovereign crosses that line post-enactment.

Assuming arguendo that GRANITE is enacted in substantially similar form to the Wyoming bill, the practical effect will be that DSA/OSA inbound to the United States will immediately, and likely permanently, cease.

If we get a full-fat GRANITE from Congress, Europe and the UK will not like it. They will kick and scream. The levels of righteous anger will be extreme; they will say America is responding to their overreach with overreach of our own, to which my answer is: too bad.

The UK chose to pick on little, US-only platforms with no UK presence. It became necessary to protect them and a shield like GRANITE is the only thing that will accomplish that objective.

In terms of what lies ahead for the relationship between our two continents, my preference would be a future where Europe and the US acknowledge our differences, or, even better, where Europe changes course from its current censorial ambitions and embraces free speech once more.

Prediction for the near future: the “Internet Censorship Cold War.”

Even if we get GRANITE, I still expect larger platforms with global footprints to largely comply with European local laws – voluntarily.

I do not expect lucrative GRANITE practices to spring up at major law firms. The damages under GRANITE are so punitive, and the deck so heavily stacked in favor of the American plaintiff (much as the EU censorship deck is presently stacked in favor of the EU regulators), that I don’t expect many GRANITE cases because, bluntly, I don’t think Europe has the stomach for that kind of fight.

In order for a shield law to really work, a censorship order has to be so destructive to the foreign entity sending it, that a regulatory investigation of an American platform for protected speech is politically suicidal, cannot result in a political victory, and therefore must not ever begin.

One commentator on X referred to GRANITE as a “legal atomic bomb.” I think that description is apt, and suggestive of what will emerge after such a law’s enactment – a state of affairs I would describe as an “Online Censorship Cold War.” The larger the EU makes their penalties, or the bigger and more strategically important a U.S. target they pursue (considering that maximum penalties are calculated by reference to a percentage of the target’s worldwide turnover), the greater are the statutory civil damages recoverable in American courts.

Because GRANITE incorporates a treble-damages mechanism for any threatened fine, every dollar of threatened/possible fine creates three dollars of guaranteed civil liability. The bigger Europe swings, the more devastating is America’s counterstrike. GRANITE is a system of mutually assured destruction, a “dead hand” device held by every single American citizen and technology company, that will be so fearsome in its consequences that no foreign state will dare risk setting it off.

An American technology company that uses it in response to a European demand might have difficulty operating in Europe, but the European country that triggers it, even once, will have permanent difficulty accessing the U.S. financial system. Given the existence of an express statutory shield confirming the existing, judge-made position that foreign censorship fines are non-enforceable here, the payoff for any foreign country of attempting to enforce a speech code against an American is simply not worth the cost.

This is far better than the status quo, which is that Europe can hit America, but America, due to self-imposed restraints, largely can’t hit back. The “Cold War” scenario means the EU can pretend it can project its sovereignty abroad, but explain away a lack of enforcement action against Americans by saying that it’s impractical, because we’re so damned unreasonable. That’s a politically sellable answer in Europe that allows us to go back to the way the Internet functioned, say, three years ago.

It also means the U.S. can probably use something like this to fix the European and UK censorship problem without pulling out of NATO, personally sanctioning European officials, or calling in an airstrike on the Louvre. The threats of the lawsuits should be enough to deter the conduct, and GRANITE’s “atomic bomb” will just sit quietly in the silo, doing nothing actively except providing deterrence.

They can moralize in peace, we can build in peace. If they want to regulate Internet companies, they’ll have to try building some of their own. At some point, maybe they’ll figure out that regulating your tech industry to death is not the best way to promote its growth.

Where next? Well, it’s back to Public International Law 101 basics, I’m afraid. No more purporting to send e-mails with extraterritorial effect, no more pretending that EU and UK rules apply on US soil. Europe and the UK will need to negotiate MLAs and cooperation agreements and agree to respect U.S. judicial process and related rights if they want Americans’ cooperation in the future. Brute-forcing domestic law on us won’t work.

I think after new management is in power in the UK, the UK might want to adopt something like GRANITE. I’d be happy to consult with any government, including Labour if they decided to actually adopt a sane tech and economic policy and changed tack, on how to do this under English law.

If enacted in America, I predict that GRANITE will prove a viable strategy for the United States to protect its domestic industry. The UK could, at some future date, adopt similar rules to protect its homegrown tech companies from EU DSA fines.

This would require the UK to take a radically different approach towards Internet regulation. Which it should, for the good of the country and its future, but that’s a matter for Parliament, not an American solo practitioner, to decide. The GRANITE model can be replicated. I hope we enact it here, and I hope the UK pivots to a more free-speech-oriented future and copies the model we designed.