As the scrutiny of big tech grows to a level that has many rethinking the need to do that “Which Nostalgic 1990s Sitcom Character Are You?” quiz, lawmakers have gone from yelling at the heads of technology and social media companies during congressional hearings to actually providing a plan to combat everything from personal information sell-offs to misinformation from foreign actors. Those that begged for something to happen to reign in big tech must, however, remember one thing: beggars cannot be choosers.
Libertarians and conservatives would like to keep the Internet “free,” insofar as it is one less thing that must be regulated by the U.S. government. However, one U.S. Senator who made his fortune in the technology industry, then turned that into a governorship and a senate seat, has proposed a massive, sweeping plan to “crack down on Big Tech” and “knock Silicon Valley into shape,” and other phrases filled with grand jubilation.
This week, Vice Chairman of the Senate Intelligence Committee Mark Warner (D-VA) proposed a 20-point plan to take on Facebook, Google, Twitter and other tech giants with “potentially insuperable competitive advantages over new entrants.” Yes, we know that sentence makes absolutely no sense, but let’s jump into the quagmire to see what it means.
Warner’s 23-page proposal, according to Axios, divides the different proposals into three topics of: combating disinformation, protecting user privacy, and promoting competition in the tech space. Though, these proposals will most likely end up cementing the big companies in place while freezing innovation industry wide.
The policy points are as follows:
Duty to clearly and conspicuously label bots: In protecting consumers from technologically advanced bots like Google Assistant’s AI-enabled Duplex, which will “increasingly make bots indistinguishable from humans (even in voice interfaces),” platforms will be required to label bots. Currently, California’s “Blade Runner law” is attempting to do just that.
As tech companies seek to label bots by using their own bots, a problems arises when human adjudication is needed, because human oversight is taken out completely.
Duty to determine origin of posts and/or accounts: This is in line with what Facebook is currently doing with two-factor authentication for those who “boost” posts on the platform and those who use it to promote politically-charged messages, either from individuals or campaigns. An address and photo identification must be provided now to be able to enhance the impact of a post.
This, however, bring up a few problems with privacy. “For one, it may incentivize online service providers to adopt identity verification policies at the cost of user privacy,” as stated in Warner’s report. It may also enable online service providers to be able to track individual users.
Moreover, the location data of a user “could potentially enable oppressive regimes to undermine and attack freedom of expression and privacy – particularly for those most vulnerable, including religious and ethnic minorities, dissidents, human rights defenders, journalists, and others.”
Duty to identify inauthentic accounts: This goes beyond the identification of bot accounts, but unveils accounts “based on false identities.”
Warner claims some social media and tech platforms have “perverse incentives” not to identify and take seriously inauthentic accounts – possibly like Facebook not taking down posts that outwardly deny the Holocaust.
Therefore, “A law could be crafted imposing an affirmative, ongoing duty on platforms to identify and curtail inauthentic accounts, with an SEC [U.S. Securities and Exchange Commission] reporting duty to disclose to the public (and advertisers) the number of identified inauthentic accounts and the percentage of the platform’s user base that represented,” the paper states. As well, “Legislation could also direct the FTC [Federal Trade Commission] to investigate lapses in addressing inauthentic accounts under its authority to address unfair and deceptive trade practices.”
Make platform liable for state-law torts (defamation, false light, public disclosure of private facts) for failure to take down deep fake or other manipulated audio/video content: Currently, social media platforms are immune from criminal liability under Section 230 of the Communications Decency Act. The rise in highly sophisticated technology like image and audio synthesis can, however, “falsely depict[ing] someone saying something or doing something…poised to usher in an unprecedented wave of false and defamatory content.”
Such a development, Warner believes, can be combated with state-law based dignitary torts.
Internet free speech advocates are staunchly opposed to this measure. Such revisions to Section 230 could mean that the threat of liability will encourage both social media platforms and online service providers to tip towards the side on content takedown, even if such content does not violate standards of practice.
“Attempting to distinguish between true disinformation and legitimatize satire could prove difficult,” Warner explains. If so, say goodbye to The Onion.
Public Interest Data Access Bill: Warner says that “One of the gravest problems…is that regulators, users, and relevant NGOs [non-governmental organizations] lack the ability to identify potential problems (public health/addiction effects, anticompetitive behavior, radicalization) and misuses (scams, targeted disinformation, user-propagated misinformation, harassment) on the platforms because access to data is zealously guarded by the platforms.”
The solution for the senator is to allow access to private user data to “independent, public interest researchers.” Such measure would allow researchers to “audit social trends on platforms.”
To protect an individual’s privacy, “contractual controls, technical controls, criminal penalties for misuse of data by researchers, extensive auditing, compliance checks, and institutional review boards (IRBs),” will be needed, but even privacy protections “may simultaneously inhibit the ability of researchers to effectively use platform data for research.”
What the senator is actually proposing here is “regulating the commercial use of behavior data by platforms,” and the “use of corporate behavioral science.”
Require interagency task force for countering asymmetric threats to democratic institutions: “Intelligence and national security communities are not as well-positioned to detect, track, attribute, or counter malicious asymmetric threats to our political system as they should be,” the report states. Warner says that a “congressionally-required task force” is needed to bring about a “whole-of-government approach” to ward off attacks against election infrastructure.
The State Department’s Global Engagement Center was one of the outlets tasked with combating foreign propaganda. According to a report from the New York Times, out of the $120 million in taxpayer funds granted to the initiative to combat Russian meddling in elections, exactly $0 has been used.
Public initiative for media literacy: This sounds like something straight out of George Orwell’s 1984.
The report says that a federally-funded program led by state and local educational institutions would by “focused on building media literacy from am early age would help build long-term resilience to foreign manipulation of our democracy.”
There is no explanation of how the program would teach people, or what would be taught, or how the teaching would be measured, but it would be “empowering individuals as fact-checkers and critics,” but “may exacerbate distrust of institutions and information intermediaries.” Probably too late on the latter.
Increasing deterrence against foreign manipulation: “We lack a deterrence strategy that would discourage cyberattacks or information warfare targeting our democracy,” Warner says. Other than that, no solution is provided other than accosting U.S. defense spending and that cyberattacks from foreign countries and combatants are a “free lunch.”
Information fiduciary: From a concept by tech experts, the institution of service providers as “information fiduciaries” would have everything from search engines to social media providers take on a fiduciary duty to their consumers due to “the extent of user dependence on them.”
However, if one blanket regulation is placed on cloud computing providers, service providers, and social media platforms, it “may inhibit the range of services consumers can access.”
Privacy rulemaking authority at FTC: Senator Warner believes that empowering the FTC with a broad authority will help with creating “complex algorithmic systems for unfairness, deception, or competition concerns.” Though, that measure will only be realized with much, much more funding.
Comprehensive (GDPR-like) data protection legislation: The European Union’s General Data Protection Regulation 2016/679 (GDPR) has key features like data portability, the “right to be forgotten,” 72-hour data breach notification, first party consent, among other personal data protections that use “pseudonymisation or full anonymization.”
If, however, a GDPR-like piece of legislation was passed through Congress, a “central authority” would need to be put in place to enforce the regulations. Sounds like something that will end up being called the “Ministry of Information.”
Such an institution could also undermine cybersecurity investigations. For example, historically public domain registration information within the WHOIS database – which operates like a phone book – would disallow information to those investigating online scammers.
1st party consent for data collection: Under the GDPR, this renders all third-party activity obsolete.
The report states that “Critics have noted, however, that a focus on user consent tends to mask greater imbalances in the bargaining power between users and service providers. The strong network effects of certain online services – and the costs to users of foregoing those services – may undermine the extent to which consent is ‘freely’ given.”
Statutory determination that so-called “dark patterns” are unfair and deceptive trade practices: These “patterns” are essentially ways to trick users into taking certain actions online they would not otherwise take. They could be a subtle as giving a false impression that there is only one option to chose when consenting, which “exploit human psychology – as per se unfair and deceptive.”
Algorithmic auditability/fairness: Social media platforms and search engines thrive on account of algorithms. Though, they could be manipulated to carry some type of bias, in this case political, that “hides” conservative news or posts from being seen by normal users.
Changing this would give the government oversight over internal algorithms used in online business practices. One of the better aspects of GDPR is that individuals are given information about the automated decision-making process that sometimes flags something as discriminatory or defamatory, with the user being able to request a human adjudicator to audit the process if need be.
“Critics of this approach will likely argue that many methods of machine learning produce outputs that cannot be precisely explained and that requiring explainability will come at the cost of computational efficiency – or, because the outputs of machine learning-based systems are not strictly deterministic, explainability is not feasible. Particularly in the context of employments, credit, and housing opportunities, however, a degree of computational inefficiency seems an acceptable cost to promote greater fairness, auditability, and transparency,” the report states.
Data transparency bill: Obviously, even though one does not have to pay Google for service of its Gmail, it is not free – data is collected and sold to sustain their business model. Warner’s plan does not stop this. After all, its fairly impossible. Though, this point of the plan would assign a “value” to a user, letting them know how much they are “worth.
“Requiring that ‘free’ platforms provide users with an annual estimate of what their data was worth to the platform would provide significant ‘price’ transparency, educating consumers on the true value of their data.”
This is not to increase user privacy, but to increase visibility into competition.
Data portability bill: When one has an account with Comcast, but wishes to switch to Verizon, all of your personal information must again be given to Verizon, and in the end, two companies have/own your information. This aspect of the plan would reduce the switching cost for the consumer in digital services.
A data portability requirement would be based on the legal recognition that “date supplied by (or generated from) users (or user activity) is the users’ (sic) – not the service provider’s,” the report states. Therefore, users would be granted intellectual property rights of their own data.
While this sounds good, a few problems arise. Service providers like Comcast, Verizon, and others are likely to claim that “observed data – for instance, classifications or generalizations about a user based on observed activity – belong to the service provider.”
As well, a data portability clause of legislation could be used by bigger provider to the detriment of smaller, emerging ones as the larger are best-positioned to offer incentives to potential consumers.
Interoperability: This aspect is used to hinder one dominant platform’s over one market or feature, which blunts competition in digital markets. Where “network effects are so pronounced, or where it would be uneconomical for a new platform to radically reinvent key functions provided by a dominant incumbent,” interoperability acknowledges that data portability alone cannot produce pro-competitive outcomes in the market.
“For instance, allowing messaging…startups access to the ‘social graph’ of Facebook would allow users to communicate more broadly without a new startup having to (unfeasibly and uneconomically) recreate an entirely new Facebook.”
What is being said here is that the government knows more and better about innovation than private business. Even some experts have express concern with this approach, claiming there might be too cozy a relationship between regulatory agencies and big tech platforms, seemingly creating a monopoly.
Opening federal datasets to university researchers and qualified small businesses-startups: “The federal government, across many agencies, maintains some of the most sought-after data in many different fields,” the paper states. Large platforms have successfully used data mining and the acquisition of smaller companies to broaden and deepen their information coffers. Access to these large databases represents one of the biggest barriers to innovation and proliferation within the startup and academia communities.
Currently, some are even pushing the Trump Administration to open up federal datasets that would allow greater access by many.
The paper claims that “Congress could ensure that this data be provided only to university researchers and qualified small businesses, with contractual prohibition on sharing this data with companies about a certain size.”
Still, this means the federal government would not be “freely” releasing data to the public, but picking and choosing who gets it.
Essential facilities determinations: In the digital mapping market, Google Maps maintains a dominant position, which was enhanced by its purchase of Waze. Warner says this allows Google to “extract preferential terms and conditions (such as getting lucrative in-app user data from the third-party apps as a condition of using the Maps function).”
For the senator, the solution is to craft legislation to define the thresholds that would constitute “essential facilities,” with a platform being required to provide data to third parties on the basis of “fair, reasonable and non-discriminatory (FRAND) terms and preventing platforms from engaging in self-dealing or preferential conduct.”
The thresholds could determine anything from “user base size,” to “market share,” to “level of dependence of wider ecosystems,” within the tech landscape.
With all that being said, there exists one protruding issue that was not dealt with in the pages upon pages of jargon-ed Washington-speak. The 21st policy point: breaking up big tech. Warner does show that techland has gotten too big for its britches, as said by The Wall Street Journal (WSJ), but that the “center of power radiates from the Hill – not the Valley.”
If just a few of these proposals end up becoming law (only if Democrats take back Congress) the loathsome bureaucratic mass of the federal government would be controlling everything revolving around the apparatus of the Internet, not market-bolstering entrepreneurs.
One of the great characteristics of the Internet is that anyone in world can post anything at anytime, a true measure of the concept of free speech.
There are no winners coming out of the “new” version of the Internet. Compliance costs would be so massive that no new startups would emerge, and the government inevitably becomes more bulbous.
If Warner seeks to take a page out of Europe’s book, let’s look at one aspect of Internet-based entrepreneurship across the pond. WSJ reports that “out of the top 100 global technology companies, only 13 are in Europe. Bet you can’t name three.”
The aforementioned article puts it best: “New ideas come from new insurgents. Google didn’t spin out of CBS. Amazon didn’t simmer inside Sears. iPhones weren’t incubated at IBM. Why handicap ingenuity? Warner-like policies only stagnate innovation while the future happens elsewhere, like China. That’s dangerous.”