Turmoil Looms for the Digital Services Act (DSA): A Clash of Regulatory Titans

The Digital Services Act (DSA), a cornerstone European legislation overseeing large – scale tech platforms, is currently mired in brewing trouble. On August 21, the Federal Trade Commission (FTC) dispatched a sharply critical letter to several major tech behemoths, including Google, Meta, Amazon, Microsoft, and Apple. The crux of the letter’s contention was that the European Digital Services Act should not be implemented if it poses a threat to freedom of expression, with a particular emphasis on the safety of US citizens.

The First Amendment as a Battle Cry

The letter, bearing the signature of FTC chairman Andrew Ferguson, prominently invoked the First Amendment of the US Constitution, specifically highlighting the freedom of speech. It stated, “Online platforms have assumed a central role in public discourse. The widespread online censorship witnessed in recent years has incensed the American populace. Americans have not only been censored and barred from platforms for expressing viewpoints and beliefs not embraced by a select Silicon Valley elite but also, the previous administration actively encouraged such acts of censorship.”

The Trump Administration’s Strategic Pivot

The Trump administration aimed to reverse the existing trajectory, and this impetus led to an assault on “foreign powers,” namely the European Union and the United Kingdom, with a specific focus on the Digital Services Act and the Online Safety Act. The letter also made an indirect allusion to the General Data Protection Regulation (GDPR), the European regulation for personal data protection. According to the letter, the GDPR’s measures are “intended to enforce censorship and undermine end – to – end encryption,” thereby eroding the freedoms of Americans.

Privacy and End – to – End Encryption: Core Regulatory Flashpoints

In the letter, the US Antitrust Authority explicitly directed 13 companies to report “how they plan to adhere to inappropriate international regulatory requirements” (the deadline for scheduling a meeting was set for August 28). It also reminded these companies of “their obligations towards American consumers under Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices” that could disrupt the market or compromise safety.

The FTC specifically targeted big tech companies regarding security, especially in relation to the adoption of end – to – end encryption. It asserted, “Companies that vow to provide secure or encrypted services but fail to implement end – to – end encryption when necessary may mislead consumers who reasonably anticipate this level of privacy.” Additionally, “certain situations may necessitate the use of end – to – end encryption, and the failure to do so may constitute an unfair practice.” The document further stated that weakening encryption or other security measures to comply with laws or requests from a foreign government may contravene Section 5 of the Federal Trade Commission Act.

Dispute Resolution and the Threat of Intervention

In a tweet on X, Ferguson unequivocally declared, “If companies censor Americans or degrade privacy and communications security at the behest of a foreign power, I will not hesitate to enforce the law.”

Guido Scorza, a member of the Italian Data Protection Authority, told WIRED, “In a globalized society such as ours, overlaps and interferences between different legal systems are inevitable. Consider, for instance, the inverse scenario, such as the conflicts between European privacy legislation and the well – known American Cloud Act.” Scorza opines that in the event of significant disparities, “it will be the responsibility of the US government and the European Commission to identify corrective measures that can safeguard the sovereignty, including digital sovereignty, of each nation.”

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