Federal Trade Commission (FTC) Chair Andrew Ferguson may not be a consistent defender of free-markets—but he has done an admirable job of defending American businesses and consumers from regulation-happy politicians and bureaucrats of the European Union (EU). This is a refreshing change from his predecessor, Lina Khan, who assisted the EU in placing new regulations on American tech companies.
Chair Ferguson has been critical of the EU’s Digital Markets Act, while Khan sent FTC employees to Europe to help implement the act. The DMA targets “gatekeepers” by forcing them to share their intellectual property with their smaller competitors and give them access to their operating systems! This is the equivalent of forcing KFC to share Colonel Sanders’ secret fried chicken recipe with rival chain Popeyes. Chair Ferguson has denounced the DMA for targeting U.S. tech companies, since five of the seven “gatekeepers” subject to the DMA are American companies.
Chair Ferguson is now fighting the EU’s Digital Services Act (DSA). This act is supposedly intended to “protect democracy” by ordering “very large platforms” like Facebook, and “very large search engines” like Google to remove misinformation, disinformation, and hate speech. The bill does not provide specific definitions of dis- or misinformation. Rather, it says that the DSA applies to any information that “is incompatible with union law or with the law of any member state.” Hate speech is defined as speech “intended to incite hate.”
By defining the terms so broadly, the act allows EU bureaucrats almost unlimited discretion to take down any post that offends their sensibilities. In order to ensure compliance with the DSA, the very large online platforms may apply the DSA’s strict standard to any posts touching on controversial topics. The DSA requires the companies covered by the act take steps to mitigate “systematic risk,” such as “threats to civic discourse, electoral processes, public security, and public health.” This goes beyond removing certain posts, actively requiring them to implement policy affecting every user of social media—not just in the EU, but worldwide.
So, the DSA could lead to increased censorship of American citizens. This justifies the U.S. government taking action to protect Americans’s First Amendment rights from a law passed by politicians unaccountable to the American public. On August 21st, 2025, Andrew Ferguson sent a letter to leading U.S. tech firms telling them to not apply the DSA in circumstances that would result in a violation of the rights of American citizens. The letter also addressed the Online Safety Act (OSA)—a British bill that erodes privacy by, among other things, making it harder to use encryption to protect the confidentially of emails.
Ferguson’s letter stated that, “Censoring Americans to comply with a foreign power’s laws, demands, or expected demands can also violate Section 5” (of the Federal Trade Commission Act). Section 5 gives the agency authority to investigate and punish unlisted methods of competition and unfair or deceptive acts or practices affecting commerce. The letter continues, “American consumers do not reasonably expect to be censored to appease a foreign power and may be deceived by such actions. And as with weakened security measures, consumers might be further deceived if companies do not prominently disclose that censorious policies were adopted due to the actions of a foreign government—as consumers mightnot want to use a service that exposes them to censorship by foreign powers.”
Whether applying the DSA or other EU laws to American citizens violates American law is something that the federal courts will ultimately decide. However, it certainly seems reasonable to say that violating American social media users' First Amendment rights on behalf of a foreign government is deceptive. Even if the companies let their users know that a foreign government is responsible for these rights violations—the companies still may be acting “unfairly” within the meaning of the FTC Act.
Ferguson’s letter did not tell the companies they should not obey the DSA or the OSA when providing services to European customers, or try to pressure the EU or Britain into repealing the DSA or OSA. Rather, he simply acted to protect the rights of American citizens from the anti-liberty laws of the EU and UK. This is not just an appropriate function of the federal government, but is the government’s most important job. Hopefully this will lead the EU and UK to rethink their assaults on online liberty.
