Dipayan Ghosh and Loully Saney, Foreign Policy
Publish: 21 Oct 2020, 01:03 pm
The United States can lead the way on innovation in technology regulation—but instead it has fallen far behind
The US Justice Department's latest move to sue Google for allegations that its search and advertising functions violate federal antitrust laws is unsurprisingly making headlines. The world should welcome much-needed scrutiny of a dominant platform that has, as the Department contends, monopolized the search sector and exploited society through that commercial domination. But the reality is that the United States—and its global partners—must take a comprehensive approach to internet regulation to address the biggest and most persistent challenges that the internet has surfaced over the past decade. While action against Google represents a significant development, lawmakers' regulatory intent can't end with Google, or simply the enforcement of antitrust provisions against the firm.
The coronavirus pandemic has only increased the importance of regulation across the internet. Covid-19 has accelerated the world's transition to a virtual economy: Work and school have largely shifted online; telehealth services have expanded; online shopping has soared; apps for food and grocery delivery, fitness, and social meetups have proliferated. Each of these trends was already underway, of course, but global lockdowns because of the pandemic have dramatically sped up these changes.
Will our way of life change forever? What will the new normal look like? The answers may be unknown, but in the short term, it is clear that people around the world are exchanging more information online, sharing more personal information with various companies, health insurance providers, employers, schools, and other networks. And all this is happening over mostly unregulated online platforms. As digital communication increasingly becomes a fundamental service upon which society depends, consumers and citizens should be asking who has access to our information and how it is being used. More and more, communication over the internet resembles a utility-like service; we turn to the same platforms every day to access social media, video conferencing, and to search the Internet. As a result, the companies behind these services have driven out competition and become economically stronger. Meanwhile, the dominant digital platforms are sucking up data, wielding it to develop proprietary insights, and steering the media landscape toward a system that is designed to maximize their profit. Put another way, they are building unilateral power over what we see and consume in the digital media ecosystem.
Consumers of any online media or data should be asking if the information they are reading is accurate and safe. People have a right to know that their data is not being used to exploit them—economically, intellectually, or politically.
Whether President Donald Trump is reelected or Democratic contender Joe Biden is victorious, the next administration must respond to the urgency that the coronavirus pandemic has brought in the context of the digital media ecosystem. Congress and the administration must work together to pass meaningful legislation to regulate the internet.
But how, exactly? And how can a regulator curb firms such as Facebook whose business models are necessarily exploitative in nature?
A smart and future-ready regulatory reform agenda will have to start by looking directly at the dominant business model in the internet sector—one that centers on the uninhibited collection of tremendous amounts of personal and proprietary network information, the use of highly opaque but sophisticated algorithms deployed for content curation and ad-targeting, and the inclination across the industry to focus on aggressive platform growth at the expense of all other considerations, including adherence to democratic norms.
The next U.S. administration must respond to these commercial overreaches in tandem. The first step is to pass a comprehensive privacy law at the federal level. The 2018 California Consumer Privacy Act represented a meaningful step forward in advancing consumer protection at the state level, but without a cohesive federal approach, businesses will be forced to navigate an inconsistent patchwork of state laws. In any case, the United States needs to take an even stronger approach than California at the federal level, with a framework akin to Europe's General Data Protection Regulation (GDPR) to protect the privacy of individuals online. The GDPR effectively gives individual consumers control over their personal data and simplifies the regulatory environment for international business across the European Union. Privacy is about giving consumers control of their data—their digital currency—as well as the ability to opt out of the internet's commercial regime that turns consumers into products sold to digital advertisers. The technology sector represents more than 10 percent of the U.S. economy. The United States should be leading the way on innovation in technology regulation—but it has fallen far behind. And while some might suggest that we do not need an American privacy law since the industry must already comply with the GDPR globally, the reality is that we need something—a law on the books—to give American consumers rights in the face of a rapidly changing industry.
Second, U.S regulators must advance transparency—in every sense—on the internet. The leading technology firms collect users' information but do not tell them what they are gathering in real time. They process users' data to derive behavioral insights but do not reveal what those insights are or how they were developed. And they target those same users with organic and paid content based on who they think they are—and in the process induce vicious biases in the media ecosystem that have brought us to deep social harms such as foreign disinformation operations. According to the Pew Research Center, 79 percent of American adults are concerned by how data is collected on them by companies, 81 percent believe the risks of collecting data outweigh the benefits, and 81 percent feel they lack control over the data that is collected on them by companies. It is not technologically unfeasible for companies to offer greater transparency into how the algorithms behind these decision-making systems work; it is simply the fact that the industry has no incentive to undertake such a practice. Lawmakers and regulators can—and should—force them to do it.
Third, we must rethink the way we enforce market competition in the United States to challenge the platforms' powerful incentive toward growth at the expense of the public interest. As a recent U.S. antitrust report suggests, lawmakers must consider ways in which to invigorate market competition, as well as strengthen antitrust law and enforcement. For too long, Americans have witnessed the courts establish a precedent focused on consumer harm—a metric that cannot effectively be computed and regulated in an industry whose leading corporate executives wrongly suggest time and again that their services are "free" for their users. Regulators must think about ways to rein in the monopoly power of these platforms. As one of us has suggested in the past, these platforms increasingly show signs of being natural monopolies and should be regulated as such.
This is a crucial moment in technology policy. There is, in fact, a tremendous amount of political will to rein in the economic power that an exploitative industry has amassed over decades. The Trump administration's lawsuit against Google may be a step in the right direction, but the next Congress accordingly has a powerful opportunity to advance a meaningful and comprehensive reform agenda to regulate Big Tech once and for all. The next administration—whether led by Biden or Trump—should seize this opportunity and work across the aisle to pass meaningful legislation to protect consumers online.
Dipayan Ghosh is a co-director of the Digital Platforms & Democracy Project at the Harvard Kennedy School and served as an economic advisor in the Obama White House.
Loully Saney is a former Senate staffer to US Sen Tim Kaine.