Senate Proposal Calls for Regulating Big Tech

White paper suggests limiting anonymity, making sites liable for content

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• August 1, 2018 5:00 am


A new policy paper making the rounds in Congress and tech circles could signal the future of regulating big tech.

The white paper, which was first obtained by Axios, was written by the office of Sen. Mark Warner (D., Va.), vice chairman of the Senate Intelligence Committee. Warner is one of the leading Democrats investigating Russian interference in the 2016 election. He and his colleagues have pointed to the Russian use of platforms like Facebook—which has some 230 million users in the United States alone—to try to influence the outcome of the election.

At one time a darling of the press and business world, big tech has seen its metaphorical stock fall in recent months amid bipartisan complaints. Russia's interference and the farming of data by Cambridge Analytica has raised the ire of liberals. Conservatives, meanwhile, have long complained of bias from social networking sites, who they say unfairly target conservative content over similar posts from liberals.

These complaints only scratch the surface of the concerns the new paper raises. Modern tech relies on aggregating huge quantities of information, the privacy implications of which are not yet fully understood. And firms like Google and Facebook have come to dominate the internet (the two companies alone have influence over 70 percent of internet traffic), a position which skeptics view as a threat to competition and the robust health of the tech sector.

In response, the white paper proposes 20 ideas for policymakers to reign in social media giants. These ideas, it argues, would help to ensure consumer privacy, curb anticompetitive behavior, and limit malicious abuse by trolls, scam artists, and foreign governments.

Much of the paper focuses on increasing large firms' transparency, making it easier for users and the general public to know what information is being collected for what purposes. A "public interest data access bill" would mandate that large platforms provide anonymized activity data to third-party researchers, allowing them to see usage trends and identify potentially concerning currents. And first party consent rules would require users' "explicit and informed consent" before sites could sell their information.

Data transparency would serve a second purpose of making it easier for would-be competitors to enter the market, learning about what current industry leaders do. Other proposals to enhance competitiveness include mandatory data portability and interoperability, both of which would make it easier for users to "switch" if they don't like a platform.

All of these data protections might be rolled into a single, more radical proposal—creating an American version of Europe's General Data Protection Regulation. The GDPR, implemented across the European Union, guarantees individuals certain rights to their data, including portability and access, and a "right to be forgotten." It also allows for harsh penalties against rule breakers—Google and Facebook have already surpassed $9 billion in fines.

Data privacy is of course not the only policy focus. The paper calls for substantive rules like disclosures of the sources of online political ads, and the banning of dark patterns (interface designs meant to trick users into selecting a desired outcome). It also endorses a "public initiative for media literacy" to educate Americans on how to spot misinformation.

All of the proposals are likely to prove controversial, but some especially so. Mandatory labeling of bots, labeling of the geographic origin of posts, and the identification and removal of "inauthentic" accounts are all likely to attract the condemnation of privacy advocates who argue that the subjects of autocratic regimes, for example, rely on the internet’s anonymity for their personal safety.

Also likely to attract concern among the internet privacy community is the idea of making platforms legally liable for failing to take down defamatory content. Such an idea—which would protect users from faked images and videos of themselves—would run afoul of section 230 of the Communications Decency Act, which makes platforms not liable for the content posted on them.

Congress has already recently curtailed Section 230, making sites like Craigslist liable for sex trafficking ads, which they host. The associated legislation was cheered by law enforcement, but heavily opposed by opponents of internet regulation.

One idea is conspicuously missing from the paper: breaking up large tech firms under the auspices of antitrust law. That's the goal of groups like Freedom from Facebook, which calls on the Federal Trade Commission to break up the social media giant’s many properties and impose several of the same proposals that show up in the white paper.

"#FreedomFromFacebook applauds @MarkWarner for taking the first steps to reign in corporate monopolies like @Facebook," the group wrote on its Twitter page Tuesday.

Published under: Technology