Bloggers Beware Part II – 20 Proposals to Regulate the Internet

Mark Warner 2 - Copy
Mark Warner

U.S. Senator Mark Warner appears to be on a mission to “nationalize” the Internet, the result of which no doubt will be restriction of content, stifling of innovation, and scarce improvements in data protection or consumer privacy. The gentleman from Virginia has published a white paper called Potential Policy Proposals for Regulation of Social Media and Technology Firms.

Liberty-leaning folks will not even need to read the 23 pages of proposals; they will only need to read the word “regulation” on the title of a paper dealing with platforms on which people express their thoughts, political leanings, religious beliefs, or business strategies.

Were Senator Warner’s white paper an isolated case of regulating free expression, there would be less cause for concern that is warranted in the wake of other legislation curbing the actions of websites, social media, bloggers, and others who express themselves on-line. This Just Vote No Blog recently wrote about California Senate Bill 1424 which aims to establish a Social Media Advisory Group “to study the problem of the spread of false information through Internet-based social media platforms, and draft a model strategic plan for Internet-based social media platforms to use to mitigate this problem.” Will your blog or post be declared “false information” because the powers that be did not like what you said?

The words “regulation” and “Internet” should not even be in the same sentence, since proposals such as these can only bring unfortunate consequences to our freedoms, as well as to our economic well being.

Find a Crisis and Exploit It

Kaiser Industries built a lot of roads and homes in California. Its pink cement-mixing trucks painted with the slogan “Find a Need and Fill It” were part of the state’s lore. Those were the 1950s, when industrialist/innovator Henry Kaiser found a need for homes, roads and factories, and filled that need by building them – with government’s blessings.

Today, it seems the dominant slogan is not the entrepreneurs’ find a need and fill it, but government’s find a crisis and exploit it. Instead of letting industrialists and innovators like Henry Kaiser produce the goods and services consumers want, government focuses on finding crises (or manufacturing them) and using these crises to tie the hands of producers and expand its reach.

Senator Warner’s 20 proposals to regulate the Internet serve as examples. Here is an excerpt from his white paper:

In the course of investigating Russia’s unprecedented interference in the 2016 election, the extent to which many technologies have been exploited – and their providers caught repeatedly flat-footed – has been unmistakable. More than illuminating the capacity of these technologies to be exploited by bad actors, the revelations of the last year have revealed the dark underbelly of the entire ecosystem. The speed with which these products have grown and come to dominated 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. Government has failed to adapt and has been incapable or unwilling to adequately address the impacts of these trends on privacy, competition, and public discourse.

Before we even examine the 20 proposals, we might note the arrogance contained in the paragraph above:

* “Unprecedented interference in the 2016 election?” Hardly. Interference in the form of influence, spying and other strategies has happened several times in the past. A famous example of interference is Britain’s campaign to discredit Charles Lindbergh, leader of the “America First” movement of the 1940s, in an attempt to obtain military help from the U.S. in WWII.

* “Dark underbelly?” Perhaps Senator Warner could consider focusing on draining some swamps in Washington DC, rather than worry about Amazon, Apple, Google and Facebook having a dark underbelly.

* “Anticipating harmful effects?” How good has been government in anticipating the harmful effects of its policies? How is the good old War on Drugs working for you and your family, especially if you happen to live in a poor neighborhood?

* “Government has failed to adapt” is always Newspeak for not yet passing more and more laws.

As noted in Senator Warner’s introduction to his proposals quoted above, the proposals purport to protect consumers and defend “our Democratic Institutions.” However, all “protection,” whether from government, the Mafia, or from zealous family members comes at a price. The price consumers must pay if they accept the “security” offered by proposals such as that of Senator Warner is loss of liberty. To protect one’s liberty one must make the effort to remain informed and exercise critical thinking. We must understand the products and services we use, and choose them wisely. We must not depend on “protectors” who most likely have their own agenda. This Just Vote No Blog wrote about that on our post Smart Cities – Your Life in a Fish Bowl.

Highlights of the 20 Proposals

These are what this Just Vote No Blog considers highlights of the 20 Proposals:

* Determine origins of posts and/or accounts to prevent bad actors from assuming false identities and influencing political debate.

* Identify inauthentic accounts to prevent spread of disinformation that pose a threat to our democratic process and undermine the integrity of digital markets.

* Make platforms liable for state-law torts (defamation, false light, public disclosure of private facts) for failure to take down deep fake or other manipulated audio/video content.

* Propose legislation that guarantees that platforms above a certain size provide independent, public interest researchers with access to anonymized activity data in order to measure and audit social trends on platforms that could help inform action by regulators in Congress.

* Require disclosures for online political advertisements in order to prevent targeted political ads sponsored by foreign advertisers. Require that platforms make all reasonable efforts to ensure that foreign individuals and entities are not purchasing political ads.

* Establish a Public Initiative for Media Literacy funded by the federal government and primarily administered by state and local educational institutions.  Building media literacy from an early age would help build long-term resilience to foreign manipulation of our democracy.

* Deem as information fiduciaries certain types of online service providers – including search engines, social networks, ISPs, and cloud computing providers – because of the extent of user dependence on them, as well as the extent to which they are entrusted with sensitive information.

* Endow the FTC with privacy rule making authority, so as to enable it to respond to changes in technology and business practices, as well as increase its funding.

* Adopt GDPR-like legislation. One major tenant of the GDPR (that the US could or could not adopt) is the potential of high penalties for non-compliance in which a company or organization can be fined.

* Determine that dark patters — user interfaces that have been intentionally designed to sway users towards taking actions they would otherwise not take under effective, informed consent — are unfair and deceptive trade practices. To address this, FTC could be given rule-making authority to ensure that the law keeps pace with business practices.

* Set mandatory federal standards for platform algorithms to be auditable, so that outputs of algorithms are evaluated for efficacy/fairness and potential hidden bias.

* Pass a bill requiring data transparency, such that free platforms provide users with an annual estimate of what their data was worth to the platform, which would provide significant price transparency, educate consumers on the true value of their data, and potentially attracting new competitors.  Data transparency would also assist antitrust enforcement agencies like the FTC and DOJ.

* Pass legislation that could define thresholds such as user base size, market share, or level of dependence of wider ecosystems, beyond which certain core functions/platforms/apps would constitute essential facilities, requiring a platform to provide third party access on fair, reasonable and non-discriminatory terms and prevent platforms from engaging in self-dealing or preferential conduct.

Does Anyone Actually Read Terms of Use?

Senator Warner’s 20 Proposals to Regulate the Internet might bring to mind prescription drug ads and their interminable laundry list of side effects. Have all the regulations imposed on drug companies prompted patients to consume less drugs or become more aware of side effects such as addictions? Have all the regulations lowered drug prices? Senator Warner’s 20 Proposals would most likely have the same result as the required listing of side effects.

However, more serious than ineffectiveness are the consequences. The proposals listed above lean towards the following outcomes:

* On-line social media platforms that host content, such as Facebook or Google Plus, will become liable for what is posted. This liability will transform social media’s function, increase the costs of operating a platform, discourage new entrants due to high costs and the threat of liability, subject platforms to the whims of powers that be bent on surpresing opposition, and is open ended. Will liability apply to content management systems such as WordPress or Joomla? Will e-mail clients such as Thunderbird or Apple Mail be liable for the content of e-newsletters, meeting announcements, or communication between group members?

* One of the proposals is the establishment of a Public Initiative for Media Literacy, funded by the federal government and primarily administered by state and local educational institutions, to build media literacy from an early age that would “help build long-term resilience to foreign manipulation of our democracy.” Perhaps the real concern here should be the manipulation of our children’s minds? How about just teaching our kids to think critically instead?

* Mandatory standards for auditable platform algorithms sounds more like killing the golden goose of innovative proprietary code than protecting consumers or defending our Democratic institutions. How far will “auditable” go? How can proprietary code be proprietary when it in essence becomes open source?

* One of the 20 Proposals is to declare the Internet an essential facility. We as a People need to decide what we want the Internet to be: 1) a host for information of all types, ideas, random thoughts, beliefs, as well as a leveler of playing fields where a user with little financial wherewithal can start a future multi-billion dollar company from his/her dorm room; or 2) do we want the Internet to be just another regulated utility.

* Lastly, Senator Warner seems to think his 20 Proposals will improve competition by tying the hands of the big social media companies and supposedly facilitating new entrants. Here are three points to consider:

Successful people make it big by aspiring to be big. They do not enter a market that highly regulates bigness just because they are little, since they do not intend to remain little.

Successful people do not need government legislation, rather they avail themselves of government policies. For example, when government (because of its gargantuan national debt) keeps interest rates ridiculously low, smart people borrow loads of money, offer stockholders of competitors good prices, and sail into near-monopoly positions.

Remember WordPerfect and Quatro Pro, or MySpace? These guys dominated the word processing, spreadsheet, and social media markets respectively. But then came Word Office Suite and Facebook. So, big companies can be replaced by smarter and nimbler ones.

As the Wall Street Journal says in its article Warner’s Plan to Ruin the Internet,
“Mr. Warner has flexed his congressional muscles and made a point. Now he can go away.”  We concur.