Due Process, and Our Approach to Dominant Online PlatformsMay 24, 2018
Today, Public Knowledge released a paper, “Even Under Kind Masters,” that recommends that dominant internet platforms provide users with due process. It is just one component of our plan to increase the work we do relating to internet platforms.
The paper argues that the principles of due process are a way to ensure that individuals are treated fairly by large institutions — whether they are public or private. It delves into some of the practical and theoretical justifications for due process protections, and recommends a robust set of procedural protections adopted from leading legal scholars. It proposes a way of determining “dominance” that is informed by the history of communications law, and suggests that applying certain rules to all platforms, and others only to dominant ones, is the best way to promote competition and protect consumers.
The fundamentals of due process — that users should have notice of and an opportunity to challenge actions that are proposed to be taken against them, and to have their challenge heard by a truly impartial tribunal — are the best way to ensure that arbitrary actions from dominant internet platforms do not inadvertently (or deliberately) cause serious harm to individual users. Provided that the principles are followed scrupulously, they can assure a fair outcome from a fair process. That said, the paper does not suggest that protections of this sort should come at the expense of or as an alternative to other measures to lessen the harms that dominant platforms can create. Additionally, Public Knowledge hopes to use this paper as a focal point for discussion and debate on the issues it raises.
Public Knowledge has been around since 2001, focusing on consumer rights in the internet space. This has involved advocating for balanced intellectual property laws, open internet rules, and basic consumer protection measures. Much of our work has, and will continue to, focus on broadband issues. With broadband, many areas have inadequate service, or just one monopolistic provider. However, the causes of this are relatively easy to see, as physical networks are costly to deploy, and the business case for a potential competitor going against an entrenched incumbent might be impossible.
But as the internet economy has developed, many internet platform companies themselves, who were once the beneficiaries of an open and competitive internet, now can stand in its way. Some of them have achieved a scale where their actions or inaction can have an inordinate effect on consumer welfare. Barriers to entry that result from data, from an entrenched user base, or from application lock-in may be just as real as those that incumbent broadband providers benefit from. When it comes both to broadband and internet platforms, it is vital for policymakers to act to address issues of market power, ensure that consumers are protected, and ensure that platforms promote public interest values like diversity, equity, and democratic discourse.
The question is how to act. The internet economy is very complex, and the problems that can arise from a large operating system vendor, or a dominant social network, search engine, payment provider, or e-commerce platform, are not all the same. Some of the policy recommendations Public Knowledge has long supported in one context (for example, common carriage) are not easily or correctly applied to internet platforms, while others (for example, privacy protections or rules against favoring economic affiliates) may be. In some instances, antitrust action or structural regulation may be the best approach; in others, consumer protection and other behavioral rules. All of those should be tools in the toolbox, but none of them should be put to work they’re not designed for.
It has also become increasingly clear that many proposals for reform have tradeoffs. Navigating these can be tricky. Open platforms benefit competition, but sometimes at the expense of security. Interoperability requirements can help consumers switch from one provider to another, but can carry a privacy risk. Freedom of expression is a core social value, but that doesn’t mean platforms should allow their tools to be used to attack other users, or that the First Amendment should be used a shield by platform providers to avoid economic regulation. Decentralized, federated networks can prevent lock-in, but can be difficult to govern and improve. Understanding the risks and rewards of various policy approaches to platforms requires expertise in law, history, economics, and technology, as well as the role platforms play in people’s lives. Public Knowledge can try to rise to this challenge.
To do this work, we intend to do what we always do: speak to lawmakers, policymakers, and their staff; suport good legislation and regulatory reforms; convene and participate in discussions with companies, other nonprofits, trade groups, and academics; litigate when necessary, and file amicus briefs when we can. We will also put out a series of papers and policy suggestions.
We’ve already started to. In addition to today’s paper, we have released papers about principles for comprehensive privacy regulation, and how sustainability management principles would benefit cybersecurity. We have long argued for stronger horizontal and vertical antitrust enforcement, and that antitrust and economic regulation go hand-in-hand to protect consumers. We also have a forthcoming paper proposing broader principles for determining how and when to regulate dominant tech platforms.
Of course, in addition to more formal papers, we have responded to current platform privacy issues, such as the Facebook/Cambridge Analytica matter and the increasing number of data breaches. And we are tracking ways that misguided changes to copyright law could leave customers with fewer choices of music providers.
Informing most of our work is a sense that, though dominant internet platforms may be relatively new, the issues they raise are not. Applying doctrines such as antitrust and traditional public interest and economic regulation to internet platforms requires paying attention to the ways that internet platforms are different, but that does not mean that none of the old rules apply or that time-tested tools should be discarded. Today’s paper, in fact, is one area where concepts that go back centuries remain vital today.
You can download “Even Under Kind Masters: A Proposal to Require that Dominant Platforms Accord Their Users Due Process” here.
Image credit: Flickr user etee
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.