Politics

Is it time for a ‘Digital New Deal’ to rein in Big Tech?

A University of Maryland law professor says the government must address the way "power has been accumulated" by Google, Facebook, Amazon and Apple.

Franklin D. Roosevelt with a cigarette in his mouth

"The 'Digital New Deal' is, for me, a good overarching framework for the breadth and depth of reform that is necessary, given how power has been accumulated by these dominant digital platforms," says University of Maryland law professor Frank Pasquale.

Photo: Underwood Archives/Getty Images

Frank Pasquale was raising concerns about Google's market dominance before it was cool. His academic literature about the outsized power of Big Tech stretches all the way back to 2008, when he wrote a paper called "Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines," predicting that "search results" would be the next hot-button issue for regulators.

As it turns out, he was probably right. Over a decade later, the Department of Justice and a group of state attorneys general are preparing to file antitrust lawsuits against Google over its enormous advertising business as well as its dominant search platform.

Pasquale, who is a professor of law at the University of Maryland, is ready to meet the moment. This week, he will release a working paper titled "Internet Nondiscrimination Principles Revisited," which revamps and dials up his previous proposals.

He said he was "timid" in his previous paper, written at a time when it might have been verboten to criticize the "upstart" Google in academia. But now, as appetite for action against the platforms increases, he said he feels it's "time to intervene again."

Protocol spoke to Pasquale on Wednesday about how he thinks the government should go about reining in the power of Big Tech.

This interview has been edited and condensed for clarity.

What is the "Digital New Deal" that you're proposing in this paper?

The "Digital New Deal" is, for me, a good overarching framework for the breadth and depth of reform that is necessary, given how power has been accumulated by these dominant digital platforms. I termed it the Digital New Deal because I feel that in a lot of the policy space, we get incrementalist reform, and we get very small proposals to tinker at things around the edges. I wanted to provide something more comprehensive, based on the latest scholarship and on watching the field for over a decade.

Can you lay out the basic contours of what the Digital New Deal calls for?

First is more robust antitrust enforcement. We really need to take a second look at the accumulation of mergers and acquisitions of so many companies by the dominant platforms.

The second are nondiscrimination principles. I realize sometimes there can be big efficiencies from having massive firms, but even if we conclude that the efficiencies outweigh the costs, we still have to make sure they don't discriminate against rivals, and especially against rising rivals.

The third is transparency. We just don't know what's going on in so many of these situations, and we need to ensure that really qualified people can look under the hood and understand how this is working.

And the fourth is aspects of public utility regulation, and that would include limits on prices. So for example, if Apple or Google can't justify these cuts they're taking from apps in their app stores, then there should be a reasonable rate of return for them, but it shouldn't be 30%, it shouldn't be so high. I have not seen a really good justification for why they take 30% in the first year and they take a large chunk of the app developers' revenue.

How have your thoughts on the dominant digital platforms changed since you first wrote "Internet Nondiscrimination Principles: Commercial Ethics for Carriers and Search Engines" over a decade ago?

I was very timid in that paper. Because the problem was that, the mainstream still at that point thought of Google in particular as this upstart challenger. The mainstream thought that Google and other tech firms had just broken the power of the music industry and "big content," that they were the good guys in the fight for net neutrality. But what I started noticing in them was that even though they were saying the right things about net neutrality at the time, they themselves were pretty powerful bottlenecks, but they weren't accepting the same types of responsibility they were calling for for the ISPs. Still, everything in that paper is explained very narrowly and very cautiously because there was so much enthusiasm for Google.

Nowadays, I feel that over the years, there have been so many troubling privacy practices, competition law violations, other issues that have arisen — not just with Google but with all of the dominant digital platforms — that I felt it was time to intervene again.

The DOJ and state attorneys general are meeting on Friday to discuss their antitrust cases against Google. Are you hoping your paper is going to provide these regulators with some kind of framework to think about their cases and potential remedies? What are you hoping regulators could take away from your paper?

I think what my paper does, particularly in its attention to the development of the European case against Google with respect to search, is that it provides concrete examples of the types of remedies that could be pursued that respond to the usual "search neutrality" objections. Usually, people object to intervening in this process by saying, "If you're trying to regulate search, you must want neutrality, and that means we'll randomly order the results." I think what my paper does is it says, "No actually, the model here is nondiscrimination." It's not forcing them to do any particular thing. The model, rather, is to stop them from discriminating against entities that appear to be disfavored unfairly.

Can you talk a little bit about that "nondiscrimination" model? What exactly does that mean, and how does it get ahead of the concerns people have about Google's search harming rivals or small businesses?

One of the basic ideas is that when someone's searching for something, and there is a Google-owned entity or an entity that's paying for placement out there, that Google also gives equal prominence to a rival entity. That would be one idea within the search nondiscrimination framework, is that it's not just a way of presenting the Google-aligned or Google-owned results, but it also is going to always give at least structure for some rival. There could be further guidance as to what that looks like but I think you can trust whichever regulatory body to develop that over time.

Attorney General William Barr said as recently as this past week that he's concerned that the dominant digital platforms are potentially censoring conservative viewpoints. That has generated a lot of interest and support among Republicans. Do you think that antitrust law can or should be used to address alleged viewpoint bias?

In terms of viewpoint bias, one of the objections I address is about First Amendment issues. And so I talk about how there were some critics of my perspective who said we shouldn't deploy antirust, and other forms of platform regulation, against search engines because they have free expression rights, and to deploy commercial law against them could be violative of that. What I do in the paper is say that, to the extent we're using antitrust or other forms of law to keep them from favoring their own products and services, that doesn't raise a First Amendment concern. However, when you have the government saying, "We think you need to include X because it's a valid viewpoint," you might start treading on First Amendment issues.

Some critics have raised concerns that Barr is bringing a case against Google not out of legitimate antitrust concerns, but rather to carry forward a political battle on behalf of President Trump, who has made it clear he doesn't like online platforms, including Google. Do you share those concerns?

I think there are legitimate worries that expanding antitrust enforcement thanks to discretion given to political decision-makers can be politicized. However, I think that the way to best mark this type of a case is to think, "Globally, what are the regulators doing? What are some of the big ideas among scholars? Does this have a foundation in rational, scholarly commitments and research?"

If you look at what the ACCC is doing in Australia, certainly the long record of work in Europe, and other countries as well, I can say lots of jurisdictions have found cause for concern with dominant digital platforms. Then I think those concerns lessen in that sense, because there does seem to be both a research-based scholarly foundation for what's going on and comparatively, the U.S. is a laggard on many of these competition law issues.

What do you predict is going to happen next, first when it comes to the cases against Google and then the possibility of updated antitrust legislation in Congress? Is significant action imminent?

It's hard to predict the future here, but I do think that, looking at the broader political economy of so many businesses struggling and very large tech platforms doing so well, that a rebalancing is due. If you look at some of the statistics on level of profits, revenue generated by Big Tech firms versus the rest of the economy, it's remarkable the divergence there. I think that's why we're now going to see a rebalancing. Even when there's a traditionally deregulatory party in power like the Republican Party, some things become too big to ignore, and I think this may be one of them.

What do you hope is the major takeaway from your paper?

I think the key takeaway is that a lot of the firms we venerate and admire as the most innovative in today's economy built their power and profits at least in part on some pretty unethical and even illegal actions. And we really haven't reckoned with that as a country yet. And we need to do so. This Digital New Deal is part of doing that.

Climate

A pro-China disinformation campaign is targeting rare earth miners

It’s uncommon for cyber criminals to target private industry. But a new operation has cast doubt on miners looking to gain a foothold in the West in an apparent attempt to protect China’s upper hand in a market that has become increasingly vital.

It is very uncommon for coordinated disinformation operations to target private industry, rather than governments or civil society, a cybersecurity expert says.

Photo: Goh Seng Chong/Bloomberg via Getty Images

Just when we thought the renewable energy supply chains couldn’t get more fraught, a sophisticated disinformation campaign has taken to social media to further complicate things.

Known as Dragonbridge, the campaign has existed for at least three years, but in the last few months it has shifted its focus to target several mining companies “with negative messaging in response to potential or planned rare earths production activities.” It was initially uncovered by cybersecurity firm Mandiant and peddles narratives in the Chinese interest via its network of thousands of fake social media accounts.

Keep Reading Show less
Lisa Martine Jenkins

Lisa Martine Jenkins is a senior reporter at Protocol covering climate. Lisa previously wrote for Morning Consult, Chemical Watch and the Associated Press. Lisa is currently based in Brooklyn, and is originally from the Bay Area. Find her on Twitter ( @l_m_j_) or reach out via email (ljenkins@protocol.com).

Some of the most astounding tech-enabled advances of the next decade, from cutting-edge medical research to urban traffic control and factory floor optimization, will be enabled by a device often smaller than a thumbnail: the memory chip.

While vast amounts of data are created, stored and processed every moment — by some estimates, 2.5 quintillion bytes daily — the insights in that code are unlocked by the memory chips that hold it and transfer it. “Memory will propel the next 10 years into the most transformative years in human history,” said Sanjay Mehrotra, president and CEO of Micron Technology.

Keep Reading Show less
James Daly
James Daly has a deep knowledge of creating brand voice identity, including understanding various audiences and targeting messaging accordingly. He enjoys commissioning, editing, writing, and business development, particularly in launching new ventures and building passionate audiences. Daly has led teams large and small to multiple awards and quantifiable success through a strategy built on teamwork, passion, fact-checking, intelligence, analytics, and audience growth while meeting budget goals and production deadlines in fast-paced environments. Daly is the Editorial Director of 2030 Media and a contributor at Wired.
Fintech

Ripple’s CEO threatens to leave the US if it loses SEC case

CEO Brad Garlinghouse said a few countries have reached out to Ripple about relocating.

"There's no doubt that if the SEC doesn't win their case against us that that is good for crypto in the United States,” Brad Garlinghouse told Protocol.

Photo: Stephen McCarthy/Sportsfile for Collision via Getty Images

Ripple CEO Brad Garlinghouse said the crypto company will move to another country if it loses in its legal battle with the SEC.

Garlinghouse said he’s confident that Ripple will prevail against the federal regulator, which accused the company of failing to register roughly $1.4 billion in XRP tokens as securities.

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.

Policy

The Supreme Court’s EPA ruling is bad news for tech regulation, too

The justices just gave themselves a lot of discretion to smack down agency rules.

The ruling could also endanger work on competition issues by the FTC and net neutrality by the FCC.

Photo: Geoff Livingston/Getty Images

The Supreme Court’s decision last week gutting the Environmental Protection Agency’s ability to regulate greenhouse gas emissions didn’t just signal the conservative justices’ dislike of the Clean Air Act at a moment of climate crisis. It also served as a warning for anyone that would like to see more regulation of Big Tech.

At the heart of Chief Justice John Roberts’ decision in West Virginia v. EPA was a codification of the “major questions doctrine,” which, he wrote, requires “clear congressional authorization” when agencies want to regulate on areas of great “economic and political significance.”

Keep Reading Show less
Ben Brody

Ben Brody (@ BenBrodyDC) is a senior reporter at Protocol focusing on how Congress, courts and agencies affect the online world we live in. He formerly covered tech policy and lobbying (including antitrust, Section 230 and privacy) at Bloomberg News, where he previously reported on the influence industry, government ethics and the 2016 presidential election. Before that, Ben covered business news at CNNMoney and AdAge, and all manner of stories in and around New York. He still loves appearing on the New York news radio he grew up with.

Enterprise

Microsoft and Google are still using emotion AI, but with limits

Microsoft said accessibility goals overrode problems with emotion recognition and Google offers off-the-shelf emotion recognition technology amid growing concern over the controversial AI.

Emotion recognition is a well established field of computer vision research; however, AI-based technologies used in an attempt to assess people’s emotional states have moved beyond the research phase.

Photo: Microsoft

Microsoft said last month it would no longer provide general use of an AI-based cloud software feature used to infer people’s emotions. However, despite its own admission that emotion recognition technology creates “risks,” it turns out the company will retain its emotion recognition capability in an app used by people with vision loss.

In fact, amid growing concerns over development and use of controversial emotion recognition in everyday software, both Microsoft and Google continue to incorporate the AI-based features in their products.

“The Seeing AI person channel enables you to recognize people and to get a description of them, including an estimate of their age and also their emotion,” said Saqib Shaikh, a software engineering manager and project lead for Seeing AI at Microsoft who helped build the app, in a tutorial about the product in a 2017 Microsoft video.

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins