Over a series of public hearings, Congress has demonstrated a staggering level of incompetence regarding technology that would convince an ordinary observer that these people shouldn’t be in charge of tech-focused policy. But a new list of 20 proposals compiled by Senator Mark Warner actually gets the ball rolling for a conversation on how to regulate the platforms that are causing so much chaos.
Every time members of Congress have sat down to talk with tech CEOs or their subordinates, the hearings have turned into an opportunity for political theater and grinding axes that rile up their individual bases. For Democrats, there have been some empty threats of breaking up the pseudo-monopolies, sort of. For Republicans, there have been some empty threats of forcing social networks to amplify conservative speech or something like that. All the while, it’s been clear that this isn’t really a topic that most politicians in America care to spend much time thinking about.
On Monday, Axios published a list of 20 proposals compiled by Warner’s staff that at least have the potential to start a debate that’s more substantive than, “Diamond and Silk were treated badly by Facebook.”
What may be more important than the individual proposals themselves is that the document is at least trying to organize a holistic way of thinking about the issues now on the table. It breaks down the areas that need addressing into the promotion of disinformation, privacy and consumer protection, and ensuring competition in the marketplace.
“The speed with which these products have grown and come to dominate nearly every aspect of our social, political and economic lives has in many ways obscured the shortcomings of their creators in anticipating the harmful effects of their use,” the document reads in its introduction. Put another way: Tech companies didn’t know what they were doing and didn’t care about the consequences as long as they were making money.
Just to highlight a few of the good issues on the table, the white paper blessedly brings the conversation back to privacy and data ownership—something that seems to have been lost as the conversation has turned to content moderation. The easiest recommendation is to implement what it calls “GDPR-like” data protection legislation that would give Americans similar data rights as EU citizens gained in May. The jury is still out on the long-term consequences of those reforms, but they require greater transparency and consent for a company’s terms of service, along with many more tools for keeping track of what information a company collects on you.
Among the positive outcomes the EU has seen since GDPR went into effect, email marketing has seriously declined and Facebook lost a million users. It seems to be going well, though who knows what the longer-term effects will be. As with all the proposals in this document, several potential downsides are listed, including the fact that Europe classifies domain registration information as private data—information that has had public value in the past.
Elsewhere in the document, it breaks out a few features of GDPR that could be stand-alone proposals, like the ability to take your data between platforms as you choose and requiring consent that would help limit the disastrous data leaks we’ve seen happen between third-party apps and social networks.
Going for a deeper cut, the paper also suggests legislation that would classify “dark patterns” as unfair and deceptive trade practices. Dark patterns are tricks in a platform’s interface or presentation that are psychologically exploitative, like presenting a choice as a default that you must agree to, such as when Facebook makes it seem like you have to upload your contacts to sign up for Messenger. The proposal acknowledges that this would be hard to codify and suggests giving the Federal Trade Commission rule-making abilities so that it could respond to infractions in real time.
On the competition side of things, the proposal suggests a data-transparency bill that would give users a more granular idea of how their data is being used and how much its worth to an individual platform. One concern it addresses is that platforms expand how they monetize a person’s data while the user is often unaware of how much they’re actually giving up, value-wise, when they agree to hand over their data in exchange for a particular service. Another benefit would be that regulators would have a better idea of what they’re evaluating in antitrust enforcement cases.
The proposals relating to disinformation are a little more worrisome. A requirement that platforms “clearly and conspicuously label bots” wouldn’t be so bad, but it’s a daunting task and opens up the potential for false positives. Likewise, demanding networks identify a user’s true identity is unrealistic, and the option of anonymity online should be protected.
Another proposal to make companies liable for state-law torts regarding issues like defamation and public disclosure of private facts is a bit terrifying. Section 230 of the Communications Decency Act has always required that platforms only remove offending content when a complaint is filed and found to be legitimate. It’s a part of our law that has helped the internet thrive, with small companies being able to forgo huge moderation teams and fair use of copyrighted materials flourishing.
It seems inevitable that Section 230 is going to be reformed in the near future—we already saw it amended with the controversial passing of SESTA, a controversial law that has already made the lives of sex workers more dangerous—the opposite intent of the legislation, which was pushed as an anti-sex-trafficking bill. Any tinkering with Section 230 should be met with a ton of suspicion.
You can read the full proposals yourself—and if you don’t like what you see, take heart in the fact none of the ideas in the document will become a reality quickly. We might see some of the details get hashed out in September when Facebook and Twitter execs are expected to head back to Capitol Hill. But don’t expect anything to change before the midterms this November, if anything changes at all.