No regulation without representation: Stopping the British government’s attempt to regulate American speech

In October 2023, the British Parliament passed the Online Safety Act (OSA). Ostensibly to protect children, this law obliges companies to identify and mitigate the risk of users encountering “illegal” content on their service. Non-compliance can lead to significant fines or service restrictions. 

Who cares? Isn’t the United States about 250 years past worrying what laws the British Parliament passes? No Kings, and all that.

Well, the British government doesn’t think so. The United Kingdom’s communications regulator, Ofcom, says the OSA applies to websites with a significant number of users in the United Kingdom, regardless of where those websites are based. When 4chan didn’t responded to Ofcom’s request for a copy of its illegal harms risk assessment, the British regulator issued a fine of £20,000 ($26,644) on October 13, with an additional £100 pounds a day for either 60 days or until 4chan provides the information.

For their part, 4chan filed a legal complaint in a Washington DC Federal Court in August seeking a ban on Ofcom enforcing or attempting to enforce the OSA against them in the United States. They argue that, as their entire operation is based in the United States, they are not bound to comply with British law.

Ofcom does not agree. In fining 4chan in October, Ofcom explicitly rejected this argument and asserted the right of the British Parliament to legislate for companies operating in the United States.

4chan’s lawyer, Preston Byrne, writes:

In addition to claiming that US law is an irrelevancy when 4chan seeks to rely on it, Ofcom claims that its rights under US law are “fully reserved” when Ofcom needs to rely on it, namely, in the lawsuit 4chan and Kiwi Farms brought against Ofcom in the D.C. Federal District Court seeking nothing more than confirmation from a U.S. judge that Ofcom’s orders were void on U.S. soil and an injunction blocking their enforcement here.

Among the rights Ofcom reserves? Sovereign immunity under the (American) Foreign Sovereign Immunities Act.

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Finally, Ofcom concedes that this brazen attack on 4chan’s civil rights really isn’t about safety, but about sending a message to other Americans. That message? Obey the UK’s censorship orders – or else:

These threats include, as the documents show and Ofcom’s Chief Executive has said in public, jailing U.S. citizens for exercising their constitutional rights and refusing to comply.

“I’ve been trying to convince the U.S. government for ten months that the UK and foreign censors have no respect for the First Amendment, and are out to destroy it,” Byrne continues, “Then Ofcom just came out and said it, more or less.”

To guard American’s First Amendment rights from the encroachment of foreign agents like Ofcom, Byrne has offered “the draft text of the GRANITE Act…to New Hampshire legislators for consideration for enactment in that state.”

“The gist is simple,” He writes:

…the only real defense a foreign censor has from injunctive relief in a U.S. court, as we saw with Ofcom’s recent fine letter to 4chan and the strategy employed by Trump Media and Technology Group’s attorneys in their case against Alexandre de Moraes in the Middle District of Florida, is sovereign immunity.

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We should take that immunity away from them. Such a move would have teeth because these foreign countries’ economies would break down if they didn’t have access to the U.S. banking system. The UK, for example, has £47 billion custodied in North American banks in order to support its currency.

The GRANITE Act makes foreign censorship inbound to the U.S. a very simple cost/benefit exercise for these countries: you can try to censor an American citizen or corporation, but if you do, they can sue you, and you, Mr. Foreign Censor, are not judgment proof because your country needs access to the U.S. financial system to survive.

Wyoming also has a draft bill. Will one be coming to North Dakota?