I will never forget back in 2006, when former Senator Ted Stevens (R-AK) infamously referred to the internet as a “series of tubes.” The cringe-worthy statement has gone down in the annals of unintentionally hilarious politician-speak. In defense of Senator Stevens, however, it merely belied a massive lack of understanding throughout the U.S. Congress about the then-burgeoning tech industry.
There are many reasons for this knowledge gap, not the least of which is that politicians aren’t technologists. In addition, most members aren’t “digital natives.” Meanwhile, the internet has grown ever more complex — as have tracking, monetization, and devices. And let’s not forget that Congress has responsibilities for governing on a wide swath of other complex public policy issues, which often leaves members and their staff stretched a mile wide and an inch deep.
Even in 2018, there were still examples of monumental ignorance about tech. But they are becoming fewer and farther between. In part, that’s because Congress has held numerous hearings over the years on tech issues, which has forced the members to become smarter. One tangible piece of evidence is that you can see a huge improvement in the questions asked by Members of Congress to tech executives over the last few years.
Europe first out of the gate
European policymakers have long outpaced their U.S. counterparts in digital savvy, even if the results have been less than groundbreaking. The ePrivacy Directive was an early attempt to provide more transparency for consumers about the mechanisms for online data collection and tracking. The ensuing “cookie banners” were not so great. The General Data Protection Regulation (GDPR) was the first major consumer privacy framework against which nearly every new privacy law is compared. Yet we’ve been waiting for more than three years for significant enforcement. This year might be the year… maybe.
Then, in late 2020, Europe rolled out the Digital Markets Act (DMA) and Digital Services Act (DSA). The DMA is intended to rein in the anticompetitive behavior of “gatekeeper platforms” while the DSA is focused on providing protection and transparency for consumers and on addressing harmful content that flows across the web. These proposals represent a more thoughtful and aggressive approach than we have seen in the past from European policymakers who clearly understand how big tech companies have cemented their dominant positions.
[Side note: If you are a DCN member, I highly encourage you and a member of your policy or legal team to attend an event we’re hosting on June 22, "Digital Markets Act: What Is It and Why Should Publishers Care?" We will provide an overview of the DMA followed by a panel of DCN members discussing the pros and cons of the DMA and the parallel proposals in the U.S.]
Congress steps up to the plate
Fast forward to last week, when a bipartisan collection of members of the House Judiciary Committee announced five bills to rebalance competition in the tech marketplace. These bills are an outgrowth of multiple committee hearings held over the last several years. The outcome of those hearings was a comprehensive blueprint for action released by the Committee last October.
The five bills are intended to:
- give greater authority to US regulators to break up dominant platforms which unfairly use their dominance to promote their own services;
- require platforms to offer data portability and interoperability to consumers;
- prohibit platforms from “self-preferencing” and/or discriminating against competitors;
- raise the bar for platforms seeking to acquire potential rivals; and
- increase filing fees for companies proposing mergers.
Action across party lines
While Washington D.C. is still deeply divided along partisan lines, it is striking to note that a number of Republicans co-sponsored all of these bills. And they did this just days prior to the confirmation of Lina Khan (69-28) in a largely bipartisan vote as she was appointed as the new Chair of the Federal Trade Commission.
Earlier this year, Representative David Cicilline (D-CT), Chairman of the House Judiciary Subcommittee on Antitrust, re-introduced the Journalism Competition and Protection Act (JCPA) with bipartisan support, including from Rep. Ken Buck (R-CO), the top Republican on the Antitrust Subcommittee. Our understanding is that they are working together on ways to strengthen the JCPA in light of the lessons learned from the European Copyright Directive and Australia’s News Media Bargaining Code.
Meanwhile on the other side of the Capitol, Senator Amy Klobuchar (D-MN) introduced a comprehensive proposal for reforming antitrust law. Senator Mike Lee (R-UT), her Republican counterpart on the Senate Judiciary Antitrust Subcommittee, recently introduced his own anti-trust reform bill. However, it isn’t likely to garner any support from Democrats.
While they offered starkly different solutions, the two lawmakers have a long history of working together to highlight the harmful conduct of big tech platforms. With the news that Senator Klobuchar is reportedly working on counterpart legislation to the House bills, it will be interesting to see whether a similar bipartisan dynamic plays out on the Senate side.
Taken together, there is a distinct shift in the posture of Congress. They have moved from hearings and investigations to remedies and solutions.
If Vegas bookies offered odds on whether Congress will pass any significant legislation in the next 18 months, it would be considered a long shot. It’s not easy to get a majority of 435 members in the House to sing off the same choir sheet. It’s even harder to find agreement between Senate Majority Leader Chuck Schumer (D-NY), Senate Minority Leader Mitch McConnell (R-KY) and 60 of their colleagues (most of whom have their own fiefdoms and presidential ambitions). But you have to start somewhere. And, right now, both parties appear to be clamoring for legislative action to rein in big tech platforms.
There will be a lot of debate in the coming months about the specifics of the House bills, the companion bills which are reportedly coming from the Senate Judiciary Committee, and the DMA and DSA in Europe. And you can be sure that the big tech platforms, which are the unquestioned targets of this scrutiny, will be spending copious time and money trying to muddy the waters and blunt these proposals.
But this much is clear: Policymakers have a come long way in better understanding the tech industry since the “series of tubes” analogy. We have reached the point where they are poised to write rules for the road that reflect how the modern world operates.