July 13, 2021 at 5:00 am ET
Lots of politicians want to do something — anything — about the tech industry’s power. But what? A look back to airline regulation a decade ago shows why a raft of recent tech regulations are missing the mark.
Starting in 2007, commercial air passengers were getting stuck on planes sitting on airport tarmacs for eight to 10 hours at a time, often without snacks or the ability to deplane. Outraged fliers demanded that lawmakers act.
But policymakers didn’t break up the airlines, sue Delta for abusing its market position or regulate ticket prices. They focused on solving the immediate problem for passengers. The Department of Transportation introduced a three-hour tarmac rule, mandating that airlines provide announcements, water, snacks and bathrooms during a delay — and the ability to deplane.
As the tech industry matures, it’s on its way to being regulated like transportation and other more established industries. The tarmac rule shows the value of regulation that fixes a specific pain point for voters and consumers.
Recent tech policy overreach
That approach might sound like common sense, but three recent examples of half-baked tech regulatory proposals show that policymakers are chasing headlines rather than targeted solutions.
First, there was the Federal Trade Commission’s antitrust complaint against Facebook, which was dismissed at an unusually early stage late last month for being “legally insufficient.”
In its rush to bring a high-profile case against one of the big tech companies, the commission failed to clearly define the market that Facebook allegedly dominates, or establish that Facebook had durable market power.
U.S. District Judge James Boasberg said that “it is almost as if the [FTC] expects the Court to simply nod to the conventional wisdom that Facebook is a monopolist” — suggesting that the case was driven more by a desire to pin something on Facebook than a factual analysis of the social networking market.
Second, a Florida online speech law tying the hands of social media platforms was practically laughed out of court this month.
After Facebook and Twitter banned former President Donald Trump and other figures involved in the Jan. 6 Capitol riots from their platforms, Florida Gov. Ron DeSantis made a show of passing legislation that would stop social media companies from taking down malicious content and deplatforming bad actors.
The law was so ill-conceived that the federal judge in this case turned to DeSantis’ lawyers and remarked, “I won’t put you on the spot and ask you if you’ve ever dealt with a statute that was more poorly drafted.” The judge enjoined the bill from implementation on the basis of violating the platforms’ First Amendment rights.
Finally, House Majority Leader Steny Hoyer (D-Md.) recently acknowledged that a package of House Judiciary Committee-passed bills making significant changes to major tech services aren’t ready to advance to the floor.
While subcommittee Chair David Cicilline held multiple hearings on Big Tech’s power, he quickly moved his proposed solutions without a single hearing on the bills and with many unanswered questions about their impact. Perhaps that’s because the bills could result in unpopular changes to popular consumer products from Amazon Prime to Google search.
Voters want a scalpel approach to tech regulation, not a hatchet job
These three recent efforts at regulating tech faltered because they have all the precision of a hatchet, wildly swinging at America’s tech companies. But when it comes to tech regulation, voters want carefully targeted rules — a scalpel approach that leaves popular products intact. A Morning Consult survey commissioned by our organization showed voters turning on Cicilline’s proposals once they learned about the broad damage these proposals would do to consumer-favorite tech services.
The tragic reality is that there’s a need for government action to protect people online. In a new era of cyberthreats, scammers and other malicious actors, Congress must defend internet users. And it should hold companies accountable for promoting healthy online communities, protecting privacy and using their power fairly. People don’t want companies to have unfettered power – but they also don’t want policymakers breaking the tech services they value in their daily lives.
If we want a tech industry that works better for people, lawmakers should take the same approach they took with the airlines a decade ago. The first step is identifying consumer problems that need solving, then pursuing targeted policies that tackle those problems, all while recognizing technology’s positive benefits. President Joe Biden’s recent executive order may end up kicking that conversation off.
It’s clear that Republicans who see value in the anti-tech culture war are unlikely to offer that kind of leadership. And in recent hearings with social media CEOs, the theatrical demands for yes-or-no answers show that too many members of Congress are more interested in making headlines than crafting solutions.
Given the political climate, the discussion around constructive tech regulation will need to be led by serious, policy-minded Democrats. Once the current political fad for tough talk against tech fades, the real work of serious legislating on tech will begin. It can’t happen soon enough.
Adam Kovacevich is CEO and founder of the Chamber of Progress (progresschamber.org), a new center-left tech industry policy coalition promoting technology’s progressive future whose corporate partners include Twitter, Amazon, Facebook and more than a dozen U.S. technology companies.
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