Some of you may have noticed I haven’t posted that much lately. For the last few months, I’ve been finishing up a project that I hope will contribute to the ongoing debate on “What to do about ‘Big Tech'” aka, what has now become our collective freak out at discovering that these companies we thought of as really cool turn out to control big chunks of our lives. I have now, literally, written the book on how to regulate digital platforms. Well, how to think about regulating them. As I have repeatedly observed, this stuff is really hard and involves lots of tradeoffs.
The Case for the Digital Platform Act: Market Structure and Regulation of Digital Platforms, with a Foreword by former FCC Chair (and author of From Gutenberg to Google) Tom Wheeler, covers all the hot topics (some of which I have previewed in other blog posts). How do we define digital platforms? How do we determine if a platform is ‘dominant’? What can we do to promote competition in the platform space? How do we handle the very thorny problem of content moderation and filter bubbles? How do we protect consumers on digital platforms, and how do we use this technology to further traditional important goals such as public safety? Should we preempt the states to create one, uniform national policy? (Spoiler alert, no.) Alternatively, why do need any sort of government regulation at all?
My employer, Public Knowledge, is releasing The Case for the Digital Platform Act free, under the Creative Commons Attribution-NonCommercial-ShareAlike license (v. 4.0) in partnership with the Roosevelt Institute. You can download the Foreword by Tom Wheeler here, the Executive Summary here, and the entire book here. Not since Jean Tirole’s Economics for the Common Good has there been such an amazing work of wonkdom to take to the beach for summer reading! Even better, it’s free — and we won’t collect your personal information unless you actively sign up for our mailing list!
Download the entire book here. You can also scroll down the page to links for just the executive summary (if you don’t want to print out all 216 pages) or just the Tom Wheeler foreword.
More, including spoilers!, below . . .
The good news from the book is that we really have dealt with this kind of situation before. For the last 150 years, the human race has continued to invent communications technologies that totally revolutionize our lives in completely unexpected ways. While no one would mistake a digital platform for a telegraph of radio broadcast, we forget just how revolutionary these things were when they made their appearance. Human beings are fundamentally communicating creatures, and technologies that amplify the power to communicate amplify every aspect of human society — for better or for worse. We can see how Facebook and other social media can provide means for a government like Myanmar to organize widescale ethnic cleansing. But we forget that the Nazis used the telephone network and radio to organize the first nationwide mass violence against the Jews on Kristallnacht. While we need to recognize the real differences between digital platforms and older communications technologies, this history provides us with valuable lessons on how to apply our fundamental values to such a powerful and important sector of the economy.
The bad news is, it’s complicated and takes time. Really. It took 20 years to go from the first major effort to regulate telephone and radio until we got to the Communications Act of 1934. While I don’t expect this to take 20 years (it better not), we need to understand that the comprehensive regulation we need to ensure that digital platforms serve the public interest won’t happen overnight, or even in just one Congress. Even if we had all the information we need to make intelligent decisions about the details and the tradeoffs, even if we had a government capable of setting aside hyper-partisan dysfunction, we need to recognize that this stuff is hard and involves lots of tradeoffs. That doesn’t mean do nothing. But it means that addressing the issues raised by digital platforms is not going to be some kind of ‘one-and-done’ law where we walk away and say ‘problem solved.
Thats why this is a framework for regulation, not a draft law. I went into this nearly 18 months ago thinking I had most of the answers. I came away convinced that a lot of my initial instincts were, if not wrong, horribly incomplete. At the same time, we can’t just keep talking ourselves around in circles while the economy becomes increasingly concentrated and corrosive content undermines our ability to trust our basic institutions of democracy and self-governance.
What Do I Hope People Get Out Of This Book?
I actually spend the introduction and a decent amount of time explaining what I think about the roll of government and why government has an affirmative responsibility to provide oversight for a section of the economy this big and important. Along the way, I spend some time bashing things like the current misuse of public choice theory.
More importantly, I hope that this gives people trying to address the issues raised by the new platform economy a common framework that is concrete enough to move the conversation forward, but recognizes that we are still a long way to go before we can draft really comprehensive regulation and set up an industry regulator to provide the needed oversight.
That doesn’t mean sit tight and do nothing while we engage in endless research. Where we have very pressing problems, and where we appear to have some consensus on solutions, we should act quickly. For example, we don’t have to wait to recognize that we need a decent election protection law and at least some sort of baseline privacy protection law. But we do need to recognize this is really hard and really complicated — especially when we start talking about things like structural separation or content moderation. It’s not just that any reviewing court will demand a really detailed record to support anything that touches on speech, or anything that imposes very significant costs on existing incumbents. It’s that the danger of screwing things up and failing to actually solve the problem are really high without the kind of detailed fact-finding that generally takes Congress years, or depends on an agency equipped to conduct detailed investigations, issue rules, and enforce those rules.
Otherwise, you get the crazy stuff going on Europe, which sounds real good until you actually go to implement it. For example, no one who has any familiarity with how content filtering works imagines you can say things like “filter out all material that violates someone’s copyright” or “take down any terrorist content within one hour and make sure it stays down” without seriously changing the way the internet actually works, and even then we’re going to be both over-inclusive and block important political speech (especially time-sensitive speech) and under-inclusive. So when governments go to actually implement them, they balk. We end up with these impressive, draconian laws on the books that either don’t get enforced or get enforced in a haphazard way that screws things up without actually doing anything productive.
So yeah, we need to take the time to do it right. That’s not code for “do nothing,” but it means recognize that we are going to need to make a bunch of trade offs about whether to be overly proscriptive or under-inclusive in a lot of potentially bad behavior (both economic and content related) in a very diverse economic sector. This is one of many reasons I recommend we create an agency designed to do sector-specific oversight and enforcement, subject to clear direction from Congress.
The other major things I hope people get out of this book is the need to stop treating all the problems that come up as unrelated one offs, or the product of a particularly greedy set of corporate bad guys. As I often repeat, economics is not a morality tale. Profit maximizing firms gonna profit maximize. That’s their job. It is the job of governments to make judgments about the limits we as a society set on what behavior to permit or prevent. As the Declaration of Independence says: “that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” It’s not that if Facebook or Youtube would just “nerd harder” they could block all the bad guys perfectly, or if Amazon weren’t so greedy they wouldn’t have 50% of online retail. It is the role of society as a whole, acting through our democratically accountable government, to determine where to make the tradeoffs to ensure that we protect the vulnerable, and otherwise “secure the blessings of liberty to ourselves and our posterity.” (Yes, I switched from the Declaration of Independence to the Preamble of the Constitution.)
So Do I Recommend Breaking Up The Big Companies? Do I Talk About Proposal X or Problem Z?
If you want to know the substance, you can read the book, or cheat and read the executive summary.
So How Did I “Accidentally” Write A Book?
Funny thing. About a year and a half ago, Marshall Steinbaum at Roosevelt Institute contacted me about doing a project. Essentially it boiled down to “we need someone to write about the sector-specific regulation side of digital platforms. Roosevelt has a bunch of folks working on the antitrust side, but we know antitrust is only one part of the answer.”
“How comprehensive do you want it to be?” I asked
“As comprehensive as possible.”
“You do know who you’re asking, right?”
So I started working on it. I came to the project with some settled ideas and approaches. Some of them panned out. A lot of them didn’t, or needed serious modification. Everything required a good deal of examination, explanation and justification. By the time I crossed the 50K word mark, I said ‘OK, it’s now a book.’ Clocked in at about 90K words for the curious.
Conclusion
I don’t imagine I’ve magically solved all the problems. Quite the contrary. But I do think this book makes a unique contribution of tying everything together and providing a real, concrete way to move forward. I expect that every aspect of it, from my definition of “digital platform” to my recommendations on creating a new sector-specific regulator, will be subject to rigorous debate. I also expect that others will find complications or potential solutions I missed. That’s a good thing. Healthy back and forth will help all of us get the policy right. What is critical is that we work toward the goal of actually developing a real, workable set of rules that genuinely promote competition, protect consumers, and foster robust civic discourse. I hope that this book will help to move this process along in a positive and constructive way.
Download The Case for the Digital Platform Act: Market Structure and Regulation of Digital Platforms.
Stay tuned . . .
