The Government Must Redefine Big Tech's Business Model
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Chapter 1: The Crisis of Big Tech
Big Tech firms are navigating a critical period, yet they resist necessary changes to maintain the status quo. Companies such as Facebook and Google aspire to fulfill three roles: they want to be seen as essential infrastructure, publishers, and champions of targeted advertising. However, this triad of identities is unfeasible. The government must intervene and guide these companies towards a new business model.
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Section 1.1: The Unprecedented Role of Tech Giants
Facebook and Google hold a unique political position akin to the telegraph monopoly of the late 1800s, where companies like Western Union and the Associated Press controlled both news and its transmission. Yet, these tech giants combine monopoly influence with the surveillance tactics of authoritarian regimes and the addiction-driven business model of the tobacco industry. They not only shape public discourse, engage in mass surveillance, and profit from fostering divisive content, but they also profit from keeping users dependent on their services. Traditional news outlets rely heavily on these platforms, which siphon off their revenue, undermining a factual foundation essential for democracy. Moreover, these companies lack democratic accountability; a small number of corporate leaders have come to dictate the flow of modern information.
Across the political spectrum, there is a growing awareness of the threat these firms pose to democratic values. The conversation has shifted from whether regulation is necessary to how it should be implemented. For instance, Republican Representative Ken Buck has voiced the need for a “Big Tech reckoning,” while progressive Representative Alexandria Ocasio-Cortez has pointed out that these monopolies undermine journalism and are unsustainable economically and socially. Florida’s Republican Governor Ron DeSantis is advocating for legislation that penalizes Big Tech for banning political figures, and Democratic Senator Amy Klobuchar has suggested that breaking up Facebook is a viable option.
Some contend that as we uncover their misdeeds, these tech giants might be compelled to foster competition. The emergence of new players could organically lead to a healthier, decentralized market. However, this notion was dismantled by the House antitrust subcommittee's investigation, which revealed that Big Tech firms create barriers to competition, either by acquiring potential rivals or stifling them before they can emerge.
Downsizing these tech giants is gaining support from both liberal and conservative factions. Advocates propose splitting companies like YouTube from Google, as well as divesting Facebook from Instagram, WhatsApp, Messenger, and other related applications. The 2020 House antitrust subcommittee report underscores the necessity for structural separation laws, which would prevent Facebook or Google from owning any content companies that compete on their platforms.
Section 1.2: The Need for More Than Just Breakups
While breaking up these companies is undeniably critical, it is insufficient on its own. Any genuine reform aimed at addressing the democratic issues stemming from Facebook and Google must begin with compelling these entities to prioritize the public good. One proposed solution involves formally recognizing their role as publishers.
Currently, traditional publishers like The New York Times are held accountable for publishing defamatory content, infringing copyrights, or running discriminatory advertisements under the Fair Housing Act. In contrast, Facebook and Google enjoy immunity from such regulations due to Section 230 of the 1996 Communications Decency Act, which regards them as simple platforms without editorial oversight. This exemption allows them to neglect the potential harm caused by their platforms. For instance, while Amtrak could be liable if it allowed a con artist to defraud passengers, YouTube shields itself from similar accountability through Section 230.
I support movements aimed at repealing certain aspects of Section 230, particularly the accountability of companies for the content they promote, regardless of whether it is paid or unpaid. However, mere repeal does not tackle the concentration of speech control among a few tech companies. For example, Facebook could still label a movement like Occupy Wall Street as a terrorist group or suppress specific political discussions at will, driven by self-interest or external pressures. Repeal does not rectify the incentives that promote polarizing content or mass surveillance of citizens.
Thus, the repeal of Section 230 is ultimately a distraction. The real solution lies in reshaping these companies to better align with the vision of platforms Section 230 initially intended; that is, mandating them to act as essential infrastructure.
Chapter 2: Historical Precedents and Infrastructure
The United States has historically confronted the challenges posed by privately owned services that have become vital to public life, such as roads and railroads. Legislative measures from the mid-18th century mandated telegraph companies to ensure equal access. Following the expiration of Alexander Graham Bell's telephone patent in the 1890s, the telephone industry flourished. In 1910, Congress passed the Mann-Elkins Act, which classified telephone service providers as “common carriers,” recognizing their pivotal role in communication. These companies could still be privately owned, but they were obligated to avoid discrimination among users.
Critics may argue that search engines and social media platforms are more akin to entertainment than essential infrastructure. However, this perspective overlooks the reality that many aspects of society rely on these platforms for connectivity. Small businesses depend on Facebook and Google to reach consumers, while politicians utilize them to engage with voters. For numerous individuals, these platforms represent the modern equivalents of sidewalks, post offices, telephone lines, and public squares, all integrated into one.
Infrastructure in American law is subject to distinct regulations compared to other consumer goods. It is treated as a public utility and regulated in the interest of the public. Companies that manage infrastructure cannot charge varying prices based on user access. Communications infrastructure is prohibited from surveilling its users. The Postal Service cannot open mail or impose different charges based on the sender's identity. Similarly, telephone companies can differentiate rates for call types, but they cannot charge different amounts to different individuals or eavesdrop for marketing purposes.
Implementing the principle of nondiscrimination for platforms like Facebook and YouTube could manifest in various ways. Congress possesses the authority to regulate public utilities, potentially banning targeted advertising or any form of algorithmic enhancement. Another alternative might involve prohibiting all advertising, requiring platforms to rely on non-targeted ads or subscription models. For instance, YouTube could charge a subscription fee akin to Amazon Prime, while Facebook could present content chronologically rather than algorithmically, thus prioritizing transparency over user addiction. Public utility regulation would enable citizens to choose among various platforms managed by tech companies and news organizations operated by responsible publishers.
Big Tech is resistant to reform, likely to invest billions in efforts to maintain the current state. The decision by these companies to limit the reach of individuals like Donald Trump and to remove anti-vaccine advocates may tempt progressives to believe that inaction is the best course. As long as Mark Zuckerberg of Facebook and Sundar Pichai of Google make decisions that align with progressive values, there is little impetus to justify government intervention or contend with speech that may be undesirable. This allows a superficial commitment to an expansive interpretation of the First Amendment while avoiding the need to propose more stringent restrictions on speech or defend the rights of those with extreme views. Facebook, in particular, capitalizes on this dynamic, having assembled a group of leading academics and journalists to provide oversight, creating an illusion that speech decisions are made by enlightened thinkers rather than profit-driven investors.
Those who find comfort in this arrangement must recognize that they are endorsing an alternative to democracy. The jurist Louis Brandeis famously stated, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.” This assertion rings even truer in the context of communications: We can either have democracy or allow a few advertising moguls to dictate public discourse, but we cannot have both.
To safeguard democracy, we must dismantle the monopolistic hold of advertising moguls and publishers, reinstate the rule of law, and acknowledge the public utility role of major social media platforms. By adhering to the communications policies that guided American law until the 1970s—regulating infrastructure, enforcing common law principles, and dispersing power—we may have a viable path forward.
An exploration of the intersection of politics and technology, examining how government policies shape the future of tech.
A critical look at how big tech firms engage in federal government contracting, with a focus on Google's role in the process.
Zephyr Teachout is an associate professor of law at Fordham Law School and the author of "Break ’Em Up: Recovering Our Freedom From Big Ag, Big Tech, and Big Money."
Originally published at www.theatlantic.com on February 22, 2021.