Sep 6, 2018

Tech Platform Regulatory Talk Is a Radical Departure from the Norm

Brent Skorup Senior Research Fellow , Andrea O'Sullivan Feature Writer

In our topsy-turvy political climate, deviations from established norms may simply be taken for granted. Recent testimonies of technology executives to Congress have stimulated renewed calls for the government to regulate online platforms as public utilities. This would be a major departure from two decades of US technology policy that fueled the rise of the world’s most innovative companies.

Our homegrown tech sector was helped by lawmakers’ decision to resist calls for traditional regulation. In the 1996 Telecommunications Act, a Republican Congress and President Bill Clinton included a provision declaring that

“It is the policy of the United States to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

This marked the first time in history that a government left a transformative new media distributor “unfettered” to develop according to the demands of the marketplace.

Sadly, those days are over. Senator Mark Warner acknowledged the new normal in his opening remarks at Wednesday’s Senate Intelligence Committee hearing, stating that “The era of the Wild West in social media is coming to an end. Where we go from here is an open question.”

There is no doubt that the appetite for control of online platforms is growing on Capitol Hill, and this week’s grilling of Twitter CEO Jack Dorsey and Facebook COO Sheryl Sandberg was a case in point. While both executives issued the requisite mea culpa to their antagonists, promising to do better to meet their expectations, future government involvement was all but a foregone conclusion.

This is, unfortunately, a bipartisan phenomenon. Democrats push for oversight of platforms like Facebook and Twitter in the aftermath of the election of President Trump, an upset only made possible in their view through “fake news” and Russian interference. Republicans, meanwhile, would like regulations placed on the same platforms to cut down on censorship and the de-platforming of conservative voices.

While the policy goals of each party are ultimately similar—government intrusion into the operations of social media platforms—the justifications for that goal tend to contradict each other.

If you are a progressive primarily concerned with shutting down “fake news,” extreme views, and foreign influence, you will probably think it is a good thing that social media platforms will censor parties that seem to engage in those activities. If you are a conservative primarily concerned with free speech or supporting the legitimacy of recent elections, you will counter that sincere voices are being stifled to avenge an exaggerated threat.

Without consensus, policymakers are unlikely to produce an intelligible solution. Although both parties argue that government oversight of social media platforms will protect the integrity of democracy and freedom of speech, the policy mechanisms will necessarily depend on who is in power. The most extreme policy option—classifying social media platforms as a public utility—would give political actors much more power over Internet speech.

For both parties, and consumers in general, this kind of hasty platform regulation will surely do more harm than good. Would anyone be surprised if Facebook, under pressure from a public overseer with subpoena power, mostly de-platformed political rivals under the guise of incivility, extremism, or hate speech?

We don’t need to only rely on theory, either. Similar talking points about balance and bias were trotted out to justify the Federal Communication Commission’s “Fairness Doctrine,” which was enforced until 1987. This policy forced broadcasters to “afford reasonable opportunity for the discussion of conflicting views of public importance”—but it mostly resulted in political manipulation to stifle rivals.

Ironically, the technology regulations that result from this unfocused outrage may help cement platform dominance when they would otherwise wane.

Consider Facebook. While it seems to be an unstoppable titan today, that could easily change in the future. Forget the Russians—perhaps parents will ultimately be the social network’s undoing: key youth demographics have been fleeing the platform in favor of Gen Z-dominated hangouts like Snapchat.

And don’t discount the market value of bad press. A Pew Research Survey released today finds that almost half of Facebook users have taken a break from the platform in the past year. An eye-opening one in four respondents said they deleted the Facebook app from their phone altogether. Regulators may find that users take care of the “social media problem” on their own by voting with their clicks.

But as the experience with the EU’s General Data Protection Directive (GDPR) has demonstrated, poorly-considered regulations on technology companies can have the unintended impact of strengthening the market share of incumbents because newcomers can’t shoulder the regulatory burden. This tendency would be all the more pronounced in a policy environment where Facebook and Twitter are protected as public utilities.

More fundamentally, inviting government control over the content posted on Internet platforms is a dramatic departure from the policy environment that allowed for the development of Facebook and Twitter in the first place. “Open questions” and vague legal burdens tend to invite anticompetitive regulation and partisan insiders with an ax to grind. Hopefully cooler heads will prevail after these hearings and regulators will focus their attention on identifiable, agreed-upon harms with practical legal remedies.

Photo credit: Jose Luis Magana/AP/Shutterstock

 

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