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A Regulator to Fit the Growing Regulatory Consensus

April 4, 2019 , , , ,

Facebook CEO Mark Zuckerberg recently published an op-ed in the Washington Post naming a role for government and regulation around four specific policies that continue to be concerns for users of Facebook and broader digital platforms. In two areas (privacy and political advertising) Zuckerberg reiterates Facebook’s agreement with previous legislative proposals, including parts of the General Data Protection Regulation (GDPR) in the European Union and (although not named) concepts from the Honest Ads Act introduced by Senators Amy Klobuchar, Mark Warner, and the late John McCain. In addition to these two topics, Zuckerberg also moves towards responding to calls from the public interest community for stronger content moderation of hateful content and for meaningful data portability to promote competition in a market that trends towards dominant platforms. While some may view yet another Facebook op-ed cynically, I believe this one should be welcomed.

Public Knowledge has long advocated for comprehensive privacy legislation with the best of GDPR’s ideas, supported the Honest Ads Act, promoted pro-competition policies like meaningful data portability, and looked for ways to balance free expression with content moderation that promotes safe platforms. It is important that Facebook now recognizes that the technology users around the world feel powerless to at times navigate tools that are innovative and beneficial, yet complicated, enigmatic, and ubiquitous at the same time. Facebook is right: Regulation is needed, and not just for Facebook. Every tech platform is structured to deliver services and content in different ways, appeals to different communities, and facilitate certain types of communication, but they may need similar protections for consumers and the public interest. The diversity of platform purposes and structures points to a need for regulation to balance public interest protections with the benefits of modern platforms. For example, shifting a user’s data off or onto one platform may not be compatible with incorporating it into another due to the data required to make a chosen service function. Additionally, different choices in communities served or targeted may lead to different community standards in different platforms.

To make this a reality, Public Knowledge supports the creation of a new regulatory agency dedicated to protecting consumers from the consequences (intended or unintended) of tech platforms. This level of expert regulation is not possible at the Congressional level, and not because of a deficiency in experience and knowledge of technology among our elected representatives. While there may be general shortcomings in the technical knowledge and technology experiences of some members of Congress the real challenge to context-based regulation that balances our society’s values is building an institution of experts who not only respect and understand the conflicting benefits and challenges of platforms, but are empowered with the tools to balance them on behalf of the public.

The creation of a new agency must be done carefully and with purpose. This agency must have a clear charge from Congress to analyze the entire diverse landscape of tech platforms, not just the dominant firms. The agency must be well stocked with experts in technology, markets, online communications and influence, community building, and the law, and should be empowered with clear rulemaking authority. The agency must have a pro-competition focus not only to protect data portability and broader consumer choice, but also as an acknowledgement that conduct and communities can shift to other platforms based on differing community standards and platform structure. Having a competition promoting mandate does not take away from the government’s antitrust authority that is a backstop to anticompetitive practices, but complements it by ensuring that a consequence of one platform’s practices are not manifest across the sector. Antitrust enforcement cannot move quickly enough to accomplish this goal.

There is no doubt that there may be other considerations to to be weighed in structuring a regulatory agency capable of keeping up with the consequences of tech platforms as well as protecting its benefits. This is why Congress must be deliberative in crafting legislation to meet this need and ensure that all stakeholders are invited to the table in its creation. But the growing consensus that our society is not doing enough to deal with the impact of the new era of online digital platforms cannot be ignored, including by Facebook. It is important that we view this acknowledgement as the start of an important conversation and with the spirit of problem solving, and not simply under the cynical prism of our current state of politics.

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