To repair social media now deal with privateness, not platforms
Already before Donald TrumpDonald TrumpSchumer: The impeachment process will be quick, not many witnesses will be needed. The nurse has to be tapped by Biden as acting general surgeon: Report Schumer calls on Biden to explain the climate emergency MORE Chasing its followers through the Capitol, social media, and its impact on political and social discourse had been a hot topic. After the January 6th uprising, things boiled over.
Some accuse Twitter, Facebook and other platforms of providing a medium for Trump and other extremists to spread the “stop the steal” lie and to plan a “wild” protest in Washington before the event. And then others accuse them of politically motivated censorship for closing Trump’s account and others. Meanwhile, a House Committee plans to tighten control over social media companies in response to the Capitol invasion.
These are contradicting criticisms. They share concerns about the size and performance of certain platforms, but rely on irreconcilable theories about how those platforms abuse their positions and what should be done about them. These contradictions are characteristic of the debate that has been going on since the 2016 elections on platforms and Section 230 of the Communications Act of 1996, the act that puts online platforms and internet service providers under liability for voluntarily blocking access to anything obscene, harassing or otherwise objectionable Material protects, smoulders.
There is a lot of homework to do to solve these problems. There is nothing near the level of consensus required to change section 230 – or even agree on the issues. From many criticisms of Section 230 – on all sides of the debate – it appears that many disputants are misinformed about its scope or the impact of a total waiver on the platform’s liability or responsibility for user content. It is also evident that some platforms can wield tremendous power and act as super-disseminators of misinformation and malice. However, much thought must be given to how to limit this power and the spread of viruses without unduly restricting the freedom of expression or the social benefits of network connectivity.
However, there is a greater non-partisan consensus on the application of competition laws. Republicans and Democrats both support increased antitrust enforcement in the tech industry, and the FTC and Trump’s Justice Department have filed cases against Google and Facebook. Further cases are possible once the individuals appointed by Biden Justice and FTC are confirmed and updated.
Such cases – and any changes to existing antitrust laws – are a project of years. And if they are successful, they can limit the performance of platforms, but only indirectly affect the quality of the information disseminated on those platforms. These are important policy initiatives that need to be followed, but they cannot meet demands for immediate action.
There is something that Congress can achieve sooner that can have a significant impact on the performance of platforms and their prevalence: basic data protection laws.
Privacy laws don’t solve all power or content issues on digital platforms, but they can help. Legislation that limits the collection, use, and disclosure of personal information would end the information system that supports the growth of platforms. It would also limit their ability to exploit their power through manipulative misinformation or marketing, and mitigate anti-competitive or anti-democratic effects.
In contrast to proposals to adapt antitrust laws to the digital age or to reform Section 230, many comprehensive data protection laws have already been introduced and examined in detail in Congress. Lawmakers on both sides of the aisle have worked hard to gather input from hearings, stakeholders and experts. As a result, they have come close to bipartisan agreement on some important issues. One ingredient was noticeably missing – the commitment of the White House.
There remain some large and difficult problems to be resolved, but a strong push by members of Congress, now joined by the Biden administration, could fill those loopholes.
I have been deeply involved in the national privacy debate since leading the Obama administration’s development of the Bill of Rights on consumer protection and proposed legislation. We have never been closer to enacting a comprehensive national data protection law as we have been in the past two years. And as I speak with stakeholders across the industry and advocate privacy and consumer advocacy this New Year, I find a significant will to do the hard work and negotiation that it takes to get the job done.
This is not the time for Congress to give up or be distracted by other “techlash” issues. The patent reform legislation, which has repeatedly stalled Congress and struggled on difficult issues, is a good example of how the job can be done. The Obama administration has teamed up with members of Congress on both sides of the aisle, working through the issues, and in 2011 achieved the largest revision of patent law in 150 years. The same kind of achievement is achievable in terms of privacy at a time when it is difficult to pass bipartisan laws.
There is an urgent need for Congress and the new administration to work to overcome the coronavirus pandemic, rebuild the economy, and fulfill America’s promises of democracy and equality. Basic privacy laws won’t stop the pandemic, get people back to work, or detoxify social media.
But it can empower individuals to use technology and build trust as we expand digital access, promote contact tracking apps, or adapt to new norms of everyday online life. And privacy laws would protect a fundamental right for every single person in America. It’s overdue.
Cameron F. Kerry is Ann R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a former General Counsel and Acting Secretary at the Department of Commerce.