Satya Nadella
The Information Apocalypse series examined the decline of trust and truth in American Institutions over the past several years, from the effects on news and information but more critically, on ideas and values. The series explored the role of leaders in a polemicized society, and the necessity for reliance on logic, common sense and rejecting the rush to judgment that has become society’s norm. In the emerging post-Info-Apocalypse era, the main conflict seems to be one of control as increasing public awareness of the powerful role of technology in our lives and its effects as both an unwitting accelerant in spreading misinformation and as a nascent arbiter of communication norms and values.
After the Info-Apocalypse examines the issues with society’s biggest elephant in the room – ‘Big Tech’ (Alphabet, Google, Facebook (now Meta) and Apple) companies and their exercise of control over consumer data and privacy, their ability to manipulate information platforms and their massive power in the global marketplace. This series will explore society’s burgeoning response to Big Tech – whether through government regulation, court challenges from companies demanding a level playing field, or regulatory attempts to hold the behemoths accountable, whether in terms of response to digital crime, or in curbing their influence on national security, society, and politics and culture.
The European Union has taken the first steps to limit digital technology’s vast influence on modern life and commerce. The U.S. is just beginning to see similar action unfold, in the case of states enactment of privacy legislation, or from lawsuits challenging how Big Tech limits competition. While these beginning actions hold promise of protection for consumers and small business, alike, the road ahead is complex and contentious.
The EU at the forefront of privacy protection
The EU has been sounding the alarm about the power Big Tech wields in the marketplace for several years. The 2016 General Data Protection Regulation (GDPR) established the legal framework and guide for companies acquiring, holding and sharing/selling the personal data of service users and customers.
In December 2020 the EU announced it would take regulation to the next level. The Digital Services Act, along with its companion, the Digital Markets Act, is intended to overhaul how the EU exercises oversight over digital markets. It will require annual audits of companies, checking how they handle illegal or harmful content, provide access for users to contact and make complaints to them and it will fine companies for non-compliance. The Digital Markets Act focuses on the role of tech ‘gatekeepers,’ the search engines, social networks and apps, and operating systems. Following an open period of comment and public inputs the acts are being prepared for a vote. They will not go into effect until approved by the European Parliament and the Council of the European Union, anticipated to occur in 2023.
Thus far, Facebook has seemingly applauded the EU’s moves, while other companies have remained more cautious in their reactions. Several have voiced concern that illegal or even questionable content may simply migrate to smaller platforms, or underground sites. The level playing field aspect of the EU’s Digital Services Act is also being tested. Google recently returned to court to protest a five billion Euro anti-trust fine. The EU Commission’s ruling is not expected until 2022.
The EU’s efforts to create a safer and more inclusive digital space has the potential to influence other nations’ regulatory efforts, just as the GDPR influenced a number of countries to enact similar laws, including Chile, Japan and South Korea. In June 2018, California became the first U.S. state to pass its own law, the California Consumer Privacy Act. In the absence of any federal action, increasing concerns over privacy and data collection have led to a number of other states to follow suit. In March 2021, Virginia passed its Consumer Data Protection Act (VCDPA). While the North Dakota legislature voted down a corresponding law in February, dozens of states are considering similar bills around the topics of consumer privacy, cybersecurity, contact tracing, targeted digital advertising, and more.
For consumers and digital and tech companies alike, the issue is becoming one of increasing complexity and potential confusion. Interstate sales and commerce may well become slower and more difficult to navigate as both users and providers attempt to address an increasingly dense network of intertwining or even competing state laws, each with varying standards for applying privacy statutes and differing reporting requirements. Currently, in the absence of other state or federal legislation, states default to the more restrictive requirements enacted earlier by California. Will the default continue to apply in interstate commerce in the future or will users only be held to the standards enacted in areas where they are physically? It is unclear what the ripple effect will be on federal entities, including Department of Defense installations and sites in different states.
The American Approach to Regulation and Consumer Protection
The necessity for Congress to legislate protections continues to grow. Self-regulation has come to the end of its road,” said Rep. Jan Shakowsky at a Congressional Hearing into the foibles of Big Tech in March 2021. The contentious hearing focused on misinformation and the spread of extremism on social media platforms, but the outcomes were negligible. Facebook touted the capabilities of its new Oversight Board and seemed to promote the idea that they could successfully self-regulate and stop misinformation and problematic political posts.
Facebook has modeled itself as a platform that encourages free speech, but, by 2019, it was coming to terms with the fact that the continuing use of the platform to spread disinformation/misinformation, hate speech, and conspiracy theories, meant that the company needed to police itself or risk succumbing to government regulation. The Oversight Board, created at the behest of CEO Mark Zuckerburg, was initially focused on eliminating the obvious, such as pornography and terrorist propaganda. But the platform’s self-described neutrality left it vulnerable to being used by hate groups and individuals with specific agendas. “Facebook has some three billion users – more than a third of humanity – many of whom get their news from the site.” Its naïve operating posture led to infiltration by Russian agents and live streaming of a mass shooting, among other abuses.
Facebook’s most recent troubles with legislators were brought about by a whistleblower leaking documents that revealed the company knew its products had negative effects on teenage girls. Congressional hearings followed. Meantime, ongoing investigations revealed the role of Russian disinformation in creating mistrust in COVID vaccines. These stories appeared not just on Facebook but on a number of social media sites, including YouTube and LinkedIn.
The new Standard Oil fight
Beyond the specter of government oversight, Big Tech is also facing increased pressure from its competitors and clients. After all, many of the firms named above accelerated their growth and market share as they aggressively bought out small competitors and reduced innovation by startups, giving them a stranglehold on commerce:
The EU has fined Google several times for its anti-competitive posture. The company is currently fighting a five billion Euro fine for its anti-competition use of its Android operating system to secure market dominance and eliminate competition.
Last year the online game Fortnite, began to offer its products to gamers directly, bypassing app stores at both Apple and Google, as the tech giants were taking a 30% cut from each sale. Epic Games, creator of Fortnite, then sued Apple. The ruling in a recent lawsuit said Apple was anti-competition and permitted small developers to continue to sell their products directly, avoiding Apple’s large cut into their profits. But Apple likewise felt vindicated.
This was merely a small loss for the tech giant. By December 2020, the combined market value of Big Tech stocks was $7.5 trillion, up from $4.9 trillion in 2019. In comparison, this number puts Big Tech profits ahead of the entire GDP of Japan.
It isn’t just power in the marketplace that Big Tech seeks, political power is also necessary. While state governments have begun to regulate to protect individual privacy and data, action on the federal side appears stalled. Even as hearings are held and states continue to act, lobbyists for Big Tech are exerting more influence on Congressional lawmakers than ever before. Tech companies have overtaken the traditional corporate lobbyists – big oil and tobacco.
America’s two biggest corporate lobbyists today are Facebook and Amazon. The coming public policy fight is, on one hand, the individual’s fight to protect one’s own personal privacy and data, the role the courts play in in that same battle and in adjudicating anti- trust cases, and the federal government’s ability to legislate protections for the public against the headwinds of powerful Big Tech influences. Big Tech is on the other side. This is our future agenda; the push and pull as Big Tech continues its dominance in every aspect of modern life – in commerce, communications and relationships, how it exercises its political influence to control markets, and to reject regulation and oversight.
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