Regulating the Power of Big Tech

Are the search results we see on the Internet the actual result of our inquiry, or is each search curated to the individual’s preferences and beliefs? Biased Google searches and social media ads, and the power of Big Tech to influence results became a concern in the wake of the 2016 presidential election after reports surfaced that Russia pushed propaganda to social media users to influence voters. (NBC News). Further, politicians from Ted Cruz to Elizabeth Warren have also voiced broader concerns about Big Tech being able to silence free speech and suppress freedom of information by selectively targeting users with ads biased toward their beliefs. (The Verge). Public officials and social media moguls recognize there is a problem, but the question is how to regulate this data that is collected from users to create biased ads. Proposals have ranged from creating consumer privacy regulations to breaking up Big Tech’s market power or regulating them like utilities. Much of the focus in recent years has been on the former.  

The massive power of technology companies is not a new issue. The United States faced Big Tech antitrust issues since long before the 2016 election. In the 1990s, the United States government brought suit against Microsoft for restricting competition among Internet access providers. (Wired). Microsoft was bundling its Windows 95 operating system with the company’s Internet Explorer web browser to force consumers to use Microsoft software, effectively thwarting competition. In a more recent action, the European Commission slapped a 4.34 billion (US$5 billion) fine on Google for illegal antitrust practices, where Android mobile devices were used to strengthen the dominance of the Google search engine. (European Commission Press Release). The problem is that current antitrust law addresses only the monopolization of competition and does not contemplate how personal data might be mixed into an antitrust issue. Antitrust behavior, like those mentioned above, and mergers allow companies to collect a vast pool of consumer data. Plus, with recent data breaches and scandals all over the news, these larger technology companies have proven ineffective (or unwilling) to help protect data for misuse. Big Tech will always need vast amounts of data. But the sole purpose of FTC regulation is to regulate competition, not consumer data, thereby leaving the issue in a grey area concerning the regulation of personal data and whether the use of this data helps monopolize the market. (Forbes). 

The regulatory landscape for privacy and antitrust law in the United States is vastly different and somewhat lagging behind that of the European Union. In the United States, the basis of antitrust laws comes from the Sherman Act of 1890, the first federal act to prohibit monopolistic and other business practices that harmed consumers. Today, antitrust issues are handled by the Federal Trade Commission (FTC) and the Department of Justice. Recently, the chair of the FTC acknowledged that antitrust law needs to be revised to reflect the digital economy and address the growing power of technology companies. (FTC Press Release). The FTC believes that one way to do this is through collaboration with international regulatory bodies. In the European Union, the General Data Protection Regulation (“GDPR”) was enacted as a way to take action on antitrust concerns, causing Big Tech to jump through additional hoops if they want to have access to EU citizens’ data. (New York Times). The GDPR gives general rights to EU citizens concerning personal data such as the right to access, the right to object, and the right to be informed of how their personal data is being used. (House of Lords Paper). But at the federal level, the FTC does not currently hold clear legal authority over consumer data. Therefore, new regulation governing the uses of personal data needs to be created by Congress.

 

With the European Union’s far-reaching regulations protecting consumer data, and the U.S. government’s inaction at the federal level, individual U.S. States and companies are considering their own measures. California, for example, is the first state taking charge in data protection, with proposals that include a person’s right to be informed of what personal data has been collected, how it will be used, and the ability to opt out of the sale of personal data. (California’s New Data Privacy Law). Further, CEOs from the largest players in the technology are speaking out amid the increased push to regulate tech companies. Mark Zuckerberg, CEO of Facebook, Inc., recently stated that the Internet needs to be regulated in four areas: harmful content, political integrity, data privacy, and data portability. (Zuckerberg’s Facebook Post). Jack Dorsey, Twitter, Inc.’s CEO, acknowledges the company’s social media platform can cause physical harm for a user and that there is a need to protect and regulate against such harmful content, but the answers on how to address these issues are not yet available. (CNBC). Tim Cook, CEO of Apple, Inc., is on board with privacy becoming a basic fundamental human right like free speech. (NBC News).

Regardless of the solution, it is safe to assume that U.S. government agencies, whether state or federal, will take regulatory action to promote greater privacy for the end user in the coming years. It already has become a hot topic for the upcoming 2020 presidential election. However, it remains to be seen how Congress will go about regulating the industry, and how that will intermix with U.S. States’ own measures and international ones like the GDPR. 

Race to the Bottom