Wednesday, September 4, 2019

The coming regulation of big tech? Yikes! We're not ready.

Kyle Langvardt and Alan Z. Rozenshtein, Sen. Hawley’s Bid to ‘Disrupt’ Big Tech, Lawfare, Sept. 4, 2019. From the conclusion:
We see five important takeaways from this trio of proposals.

First, they are willing to directly intervene in how technology companies design and operate their services. This is a striking change from what’s gone before, but it’s also a natural evolution of technology regulation. In the early days of the internet, the government took an intentionally hands-off stance. The past few years have seen increased regulation, but it took the form of empowering other actors—specifically, users—to act. Consider SESTA/FOSTA (and other attempts to limit Section 230 immunity); rather than regulating platforms directly, these laws authorize private litigation that pressures companies to improve their policies. Or consider data-privacy laws like the California Consumer Privacy Act (and the law that inspired it, the European General Data Privacy Regulation), which largely operate through a notice-and-consent process meant to empower users to control how their data is being used.

The Hawley proposals are much blunter. They identify certain practices and design features as harmful, and then they either ban them or attach penalties to them. No more infinite scrolls. No more loot boxes in kids’ games. Megaplatforms that violate new FTC standards on “political bias” in content moderation will be left to drown in potentially ruinous litigation over third-party content.

It is remarkable to see such measures come from the desk of an otherwise typical deregulatory conservative. The willingness of Hawley and his co-sponsors to regulate a leading economic sector at such an intimate level reveals a deep disillusionment with the current state of affairs and a lack of faith that anything but drastic measures will suffice. It also suggests they think they have found a ripe political target.

The second lesson is that regulation is hard. ...

Third, it’s dangerously easy for politics to obscure the bipartisan stakes. For example, Republicans are doing their best to make content moderation look like a partisan issue based on unfounded claims. Sen. Hawley and others have alleged, without any real basis, that lefty Californians at Google and Facebook use content moderation to undermine conservative views they disdain. This unsupported paranoia distracts from the copious evidence of general arbitrariness in platforms’ policies, in terms of both their application and the platforms’ tendency to change their policies seemingly on a whim….

A fourth observation: Any attempt to directly regulate how technology companies design and operate their products will raise serious First Amendment challenges. ...

Such arguments point out the tensions inherent in the current expansive trend in First Amendment doctrine, which can sometimes seem to protect almost everything tech giants do. But the practical realities suggest this can’t be right—does the First Amendment really require the government to jump through tiers-of-scrutiny hoops any time it wants to regulate the largest and most powerful companies in the world? Whatever concerns one might have about the Hawley measures specifically, there is probably some role for the kind of direct design regulation that Hawley has proposed. How First Amendment doctrine will accommodate that role remains unclear.

Finally, although it is virtually certain that none of these bills will get a Senate vote, let alone become law, it is a mistake to write them off as stunts (even if Hawley is particularly good at trolling the technology industry) or as the clueless rantings of the techno-illiterate. It is wiser to take them seriously, even if not literally, and consider their potential (at least in better-drafted form) to expand an often-stagnant discussion around tech policy in a new and dramatic direction.

Hawley—at 39, the youngest member of the Senate—is clearly knowledgeable about and comfortable with technology, and he has been squinting at the technology industry since he was Missouri’s attorney general. The Hawley measures have many flaws, but they are not behind the times. Instead, their most fundamental provocation is that they attempt to think ahead to an unsettling future. American scholars and legislators are used to assuming that free speech and the free market walls off software from design-based regulation and that software design is unregulable by nature. Whatever their other problems, the most provocative aspect of the Hawley bills is that they challenge this laissez-faire consensus. …

The Hawley proposals—expansive, invasive, constitutionally uneasy—show just how hard it will be to reconcile big tech with the premises of a free society. The bargain with today’s attention merchants has concentrated a stunningly inappropriate amount of power in the hands of a small and unelected group of individuals. The Hawley proposals envision a public regulatory platform big and aggressive enough to match that power. One thing is for certain: It won’t be pretty.
While you're at it, take a look around the corner at  Virtual Feudalism in the Twenty-First Century and Denmark has appointed an ambassador to Silicon Valley...

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