Where to now for tech regulation?

We have arrived at a tipping point in the history of digital technology. Citizens from around the world are beginning to appreciate the harmful nature of Silicon Valley’s business model, and their democratic representatives are coming under pressure to turn that awareness into action.

The dying days of the Trump Presidency were not easy for Silicon Valley. In July, the CEOs of the big four tech companies gave evidence before the House Judiciary Committee investigating breaches of antitrust law. The Committee subsequently published a 449 page report that made an array of recommendations for regulating platforms. Various tech industry representatives have since given even more evidence in further hearings before the Senate Committee to discuss content moderation. If that wasn’t enough, Google was sued by the Department of Justice for anticompetitive conduct.

Companies have been seeking to address this growing demand for regulation in various ways for a while now. It’s notable for instance how actively Twitter and Facebook approached the problem of disinformation during the election campaign, a responsibility they had shirked for a very long time. It was just one of many recent attempts by companies to set the agenda for reform and experiment with self-regulatory approaches, and its outcomes were mixed at best.

With the defeat of Donald Trump, we face a critical moment for users of technology and citizens of the digital world. An appetite among the public for reform is about to face off against a well-resourced industry that is looking for ways to contain the regulatory impulse.

With the election of Joe Biden, the industry breathed a sigh of relief. In place of the chaos and mercurial experience of the previous administration, the next four years looks set to be a de facto third Obama term. Tech companies can expect certainty on policies like skilled migration, which are important to their sector. And while Biden has indicated he has some policy differences compared to Obama, it is unclear how far they will extend. Data extractive business models have enjoyed generosity from centrist liberals in the past. On tops of this, tech giants have spent half a billion dollars on lobbying over the last decade, and Biden is widely perceived as a pro corporate Democrat.

The reality is that the rights of people as users and digital citizens are unlikely to be high on the priority list for the Biden administration. It’s appalling that Biden seems to be seriously entertaining for a cabinet role Meg Whitman, a former Republican who made her billions in tech and has the history of failure and personal vanity to prove it. His transition team includes Martha Gimbel from Schmidt Futures, the philanthropic initiative started by former-Google CEO Eric Schmidt and his wife. Also on that list are executives from Uber, Lyft, Amazon, Salesforce and Sidewalk Labs (owned by Alphabet). These captains of industry represent companies that have variously faced criticism for their contractual relationships with Immigration and Customs Enforcement, or shadowy deals aimed at accumulating sensitive data. In the case of Uber and Lyft, their positions of influence come after a successful astroturfing campaign in California to legislatively strip gig workers of their rights in the form of Prop 22. They are now well placed to execute on their strategy to implement this reform across the nation.

For many on this left, this is entirely predictable. But the centrists within the Biden administration will have to contend with some reasonably serious internal opposition to any reluctance to regulating big tech. Other parts of the Democratic party are gaining in influence, particularly on the question of antitrust reform. Senator Warren made breaking up big tech a big part of her presidential bid, and is an obvious choice for the Biden cabinet  (although she may face an uphill battle). With Democrat control across the House and Senate looking unlikely, these decisions gain importance. There is something to the argument that, as Zephyr Teachout put it, we should ‘start thinking about the [Federal Trade Commission] as a central site of democratic politics.’ In her recent book calling for the break up of these companies, she argues that the risk ‘is not that government won’t act, but that it will act just enough to make it look like it is doing something, but not enough to break up big tech’s power.’ It’s the job of activists to make sure this does not happen.

Australia may not be in a position to do much with respect to breaking up the big platforms, but it doesn’t mean we are powerless to take on tech giants. Our own competition regulator has been active in this space by global standards. The Digital Platforms Inquiry by the Australian Competition and Consumer Commission made a range of policy recommendations designed to address the dominance of Google and Facebook, but also by extension, other platforms too. There was a lot of forward-thinking ideas in there, which if implemented, could go towards improving protection for users of these services. Most recently, in response to the inquiry, the Attorney General published an issues paper on reforming the Privacy Act which represents an opportunity to update our laws for the digital century. It’s fair to say that the current government has been more talk than action, but this shouldn’t be a reason to hold back. Breaking up big tech is an appealing idea for a reason, but it will not solve all our problems, and there are lots of opportunities for reform that have the potential to return power to people.

A great appeal of the web is its borderless nature, but we should not lose sight of the opportunity we have to think about the web we want, specific to our place and our politics. Indeed, with the growing presence of the internet of things, it would be a mistake to think otherwise. Potentially harmful tech is not just on our devices, it is also on the streets. Digital Rights Watch (of which I am chair) are campaigning to make sure smart cities are not downright dangerous. We hope to sign cities up to Cities for Digital Rights initiative, where cities around the world sign to protect, promote and monitor residents’ and visitors’ digital rights. We are also running a campaign for a ban on facial recognition technology, an objective that reflects a recommendation made by our Human Rights Commissioner. It’s a campaign that has been growing in significance in the US, with companies like Microsoft and Amazon refusing to sell this technology to law enforcement. With some organised enthusiasm, we have the opportunity to seek the same assurances here.

As the harms of big tech are becoming more evident in the mind of the public, we need to organise around the opportunities for reform presented by this moment. While the election of Joe Biden might have bought some breathing room for the industry, activists here have the chance to push for reform that can be meaningful. We all have a stake in this fight, because good tech policy is not a matter of bytes and code – it’s a matter of power.


Image by Michael Schwarzenberger


Lizzie O'Shea

Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology.

More by Lizzie O'Shea ›

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  1. As long as many politicians ‘conveniently find’ lucrative positions with multi national corporations following their gold plated retirements from politics, regulations will be mere window dressing.

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