Tom Wheeler

The actions of Facebook and Twitter to ban President Donald Trump are protected by Section 230 of the 1996 Communications Act. This is the same Section 230 behind which social media companies have sheltered to protect them from liability for the dissemination of the hate, lies and conspiracies that ultimately led to the assault on the U.S. Capitol on January 6. These actions are better late than never. But the proverbial horse has left the barn.

Confronting the Biden transition are five existential crises. The pandemic is surging. The economy is stalling. Social justice is faltering. Climate change is on a rampage. And the government that is essential to dealing with each of these problems has been hollowed out by four years of constant attacks. And, oh yes, these issues must be dealt with despite a potentially divided government and deeply divided citizenry. As a tech policy wonk, I am often asked, “How will the Biden transition handle tech policy?” It is the wrong question.

The abusive practices of the dominant digital platforms are so widespread and have become so embedded that there is no single solution. What is needed is a cocktail of remedies that blends antitrust with ongoing regulatory oversight. The digital-oversight cocktail, therefore, needs to include the ability to establish industry-wide behavioral rules in addition to antitrust enforcement.

The largest user of spectrum, the Department of Defense (DoD), has put out a Request for Information (RFI) that seems to propose that at least some of the spectrum traditionally used by the military could be shared for a fifth generation (5G) wireless network. The DoD cites a component of 5G technology called dynamic spectrum sharing (DSS) as the vehicle to accomplish this. This is a milestone. The Defense Department itself is suggesting that it is possible to share spectrum without harming its operations.

The rapid pace of digital technology means companies can move rapidly to advantage themselves by exploiting consumers and eliminating potential competition. Congress has traditionally created new expert agencies to oversee new technology platforms. Whether the Interstate Commerce Commission (railroads), Federal Communications Commission (broadcasting), Federal Aviation Administration (air transport), Consumer Financial Protection Bureau (finance), or any other of the alphabet agencies, the precedent is clear: new technologies require specialized oversight.

America’s broadband providers have stepped up with the ‘K-12 Bridge to Broadband” to help meet the needs of millions of low-income American students who are unable to get on the internet so they can go to class from home. The new program will do two things the Trump Federal Communications Commission (FCC) has failed to do. First, it will identify households with students that have broadband passing their door but have chosen not to subscribe.

There are almost three times as many Americans without a broadband subscription in blue urban areas than in red state rural areas. The Trump Federal Communications Commission, by focusing its attention on rural areas with a lack of access (i.e., those unable to get broadband) is dealing with only part of the digital divide. The larger part of the digital divide is adoption; those Americans who may have broadband available, but don’t or can’t use it. Here are three solutions the Trump FCC could pursue if they really were dedicated to making the digital divide their “number one priority.”

The digital marketplace is wide-reaching, complicated and self-reinforcing. The systems developed to oversee an earlier time are burdened by industrial era statutes and decades of precedent that render them insufficient for the digital present. In the absence of federal oversight, the dominant digital companies have made their own rules and imposed them on consumers and the market. Just as industrial capitalism operated—and thrived—under public interest obligations, so should internet capitalism be grounded in public interest expectations.

It was the “Wizard of Oz” in digital format as the four titans of Big Tech testified via video before the House Antitrust Subcommittee. Just like in the movie, what the subcommittee saw was controlled by a force hidden from view. The wizard in this case—the reason these four companies are so powerful—is the math that takes our private information and turns it into their corporate asset. It is the 21st century equivalent of Rockefeller’s 20th century monopoly over oil. Unlike industrial assets such as oil, data is reusable. Data is also iterative, as its use in a product creates new data.

“I have the right to do a lot of things that people don’t even know about,” President Donald Trump said in a 2020 Oval Office exchange. One of those powers is his authority to shut down radio, television, both wireless and wired phone networks, and the internet. It is not a big step from using the power of the government to threaten free expression to actually doing something to curtail that expression. All it takes is a unilateral “proclamation by the President” of the existence of a “national emergency.”