Sen. Warner’s Platform Regulation: A good step forward, but what about ISPs?

Reprinted with permission from ProMarket. See full article at https://promarket.org/sen-warners-ambitious-plan-regulate-social-media-giants-ruin-internet-save/

Sen. Mark Warner’s proposals to regulate social media platforms are by far the most ambitious to come from Congress. ProMarket gathered three experts to discuss the pros and cons. Below is the reaction of Benton Senior Fellow and Public Advocate Gigi Sohn. She is also a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy and formerly a counselor to then-Federal Communications Commission Chairman Tom Wheeler. She recently outlined her own suggestions for a policy framework to regulate tech platforms in the Georgetown Law Technology Review. Many of her proposals are not dissimilar to Warner’s, particularly when it comes to data portability and algorithmic transparency and accountability.

This is the first comprehensive, thoughtful look coming from Capitol Hill about how to deal with some of the problems afflicting the largest online platforms. There have been a bunch of bills introduced over the past few months purporting to solve some of these problems, but I don’t think they were particularly well thought out. This [white paper] is well-researched, well-thought-out, and comprehensive, and I think that deserves a great deal of praise. 

I think there’s a lot of compatibility between Senator Warner’s proposals and mine. We agree on the need for transparency of algorithms and accountability for the harm that algorithms cause. We agree on the need for consumer privacy protections (although not necessarily on the specifics). We agree on the need for data transparency and portability, on the duty to label bots and disclosure for political ads and the need for the government to fund media literacy programs. I am not sure how much the government can solve the problem of people believing everything they read, but I think teaching people how to be critical of what they see on social media should be taught starting in the first grade.

That being said, though I agree with an awful lot of what’s in that paper, I don’t agree with everything that’s in it. Where I get a little bit nervous is some of the discussions about the duty to determine the origin of posts and accounts. There may be very good reasons why people are posting anonymously, particularly if they’re living under repressive government regimes. I think Senator Warner recognizes this problem and that the ability to speak anonymously is part of the right to free speech and the right to privacy.

Another thing that kind of makes me a bit nervous is that I think that the GDPR [the European Union's General Data Protection Regulation] has a lot of good in it, but I am not sure that it comports particularly well to the US—although obviously, parts of it might, certainly the notion that consumers should own their data and that there should be robust notice and consent.

I was fascinated by the discussion of information fiduciaries and “essential facilities,” but I’m not sure that we have to go that far in order to place on platforms the requirements that [Sen Warner] wants to place on them. I think Congress could prohibit discrimination in favor of your own sellers, content, and affiliates without naming something an essential facility. I also think you can have strong privacy rules without creating the whole new category of information fiduciary. From a political perspective, if you don’t have to create these new classifications, I think you may have an easier time actually getting the results you want.

I like the idea of strengthening the Federal Trade Commission and giving it more rule-making authority; I think it’s critical. I also think Congress needs to be a little bit more specific about what constitutes unfair and deceptive trade practices because the FTC itself has defined them very narrowly.

One thing I would have liked to have seen in the paper is more attention to Internet Service Providers. Senator Warner focuses almost entirely on the platforms, and while they clearly need more regulatory oversight and reforms, I don’t think you can talk about competition and privacy and transparency without also talking about the network providers. We’re in a world where the vast majority of Americans don’t have a choice of more than two ISPs and those ISPs can actually have access to more personal data than Google and Facebook—they just haven’t figured out what to do with it yet. Senator Warner does mention the ISPs very briefly, but I don’t think you can talk about promoting competition, privacy, accountability, and transparency if you’re leaving one half of the Internet ecosystem out of the conversation. I would have liked to have seen more acknowledgment that it’s not just the platforms that are problematic.

When it comes to breaking up the platforms—which Warner’s paper does not call for— I’m concerned that the cure may be worse than the disease. I respect my colleagues who do call for it, but I’m not sure I agree with them. AT&T was a monopoly for 84 years and guess what happened to AT&T after it got broken up? It got put back together again, even more powerful than ever. I think it’s fashionable to talk about breaking up the companies, and I can see the rationale for it, but I’m just not convinced that that steps short of that—like nondiscrimination principles, like real data portability, like algorithmic transparency and accountability—won’t work. I’d like to see if those work first before talking about taking such a severe step.

Overall, I think that Senator Warner’s ideas are a good step forward in dealing with the problems of concentration, network effects, and control of data for online platforms. But it doesn’t deal with the other half of the ecosystem. Yes, Google and Facebook and Amazon are gatekeepers, but if you can’t get on the Internet, they cease to exist. It’s much less sexy to talk about Comcast and Charter and AT&T, but they have a power that even those big tech companies don’t have. The concentration in that market is enormous and it’s not getting any better. In fact, it’s only getting worse.

Even if Warner’s proposals solved all the problems he aims to solve, we still have the problem of broadband providers having access to all your information and charging a median of $80 a month for access. Even if you cleaned up Facebook and Google and Amazon completely, there’s still 20 percent of Americans who don’t have access to it. What good is it to have a system that’s not affordable and accessible and can still violate your privacy? Do the tech companies deserve scrutiny? Absolutely. Have they brought a lot of this on themselves? Yes. But my message to policymakers is that they’ve got to look at ISPs as well.

I’m impressed that Senator Warner himself freely admits that some of these ideas may have unintended consequences and may not be politically feasible. I think he knows there’s not going to be a bill with all these 20 ideas ready to pass any time soon, but he wants to at least put some ideas on the table. Over the past year or so there have been a lot of smart folks throwing out various ideas for greater government oversight of the largest online platforms, but until now, nobody has brought many of these ideas together in one place. It’s extremely humble for a senator to say “Look, I don’t have all the answers, I’m not trying to solve everything, but here’s how I think we can get to a place where the online platforms are not threatening our democracy and way of life.” I hope that other members of Congress and policymakers take Senator Warner up on his challenge and that we see more than just grandstanding. We have a real problem here and something needs to be done, and soon.”

Reprinted with permission from ProMarket. See Would Sen. Warner’s Ambitious Plan to Regulate Social Media Giants “Ruin” the Internet—Or Save it? at https://promarket.org/sen-warners-ambitious-plan-regulate-social-media-giants-ruin-internet-save/