As long we've had electronic mass media, audiences and creators have benefited from periods of technological upheaval that force old gatekeepers to compete with brash newcomers with new ideas about what constitutes acceptable culture and art. Those newcomers eventually became gatekeepers themselves, who then faced their own crop of revolutionaries. But today, the cycle is broken: as media, telecoms, and tech have all grown concentrated, the markets have become winner-take-all clashes among titans who seek to dominate our culture, our discourse and our communications.
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It's been a year since Chinese social media giant Bytedance relaunched its super-popular app Musica.ly as Tiktok; the company is now valued at $75b, and in the USA it has become a serious challenge to US-based social media companies, courting a young audience (so young that it's getting into legal hot water over it).
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Without naming any companies, the DOJ has announced that it will investigate Big Tech platforms that dominate "search, social media and retail services."
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One of the more extravagant claims made by tech companies is that they can detect emotions by analyzing photos of our faces with machine learning systems. The premise is sometimes dressed up in claims about "micro-expressions" that are below the threshold of human detection, though some vendors have made billions getting security agencies to let them train officers in "behavior detection" grounded in this premise.
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In 2011, the US Federal Trade Commission put Facebook under consent decree after the company "deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly [allowed] it to be shared and made public."
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Everyone in the tech world claims to love interoperability—the technical ability to plug one product or service into another product or service—but interoperability covers a lot of territory, and depending on what's meant by interoperability, it can do a lot, a little, or nothing at all to protect users, innovation and fairness.
Let's start with a taxonomy of interoperability: Read the rest
One of the arguments against hate-speech laws is that once the state starts dividing expression into "allowed" and "prohibited," the "prohibited" category tends to grow, in three ways: first, because company lawyers and other veto-wielders err on the side of caution by excising anything that might be in the "prohibited" bucket; second, because courts respond to these shifts in the discourse by finding more and more edge-cases to be in violation of the law; and finally, because lawmakers are tempted to shovel any speech they or their campaign donors don't like into the "prohibited" bucket.
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In my latest podcast (MP3), I read my May Locus column: Steering with the Windshield Wipers. It makes the argument that much of the dysfunction of tech regulation -- from botched anti-sex-trafficking laws to the EU's plan to impose mass surveillance and censorship to root out copyright infringement -- are the result of trying to jury-rig tools to fix the problems of monopolies, without using anti-monopoly laws, because they have been systematically gutted for 40 years.
A lack of competition rewards bullies, and bullies have insatiable appetites. If your kid is starving because they keep getting beaten up for their lunch money, you can’t solve the problem by giving them more lunch money – the bullies will take that money too. Likewise: in the wildly unequal Borkean inferno we all inhabit, giving artists more copyright will just enrich the companies that control the markets we sell our works into – the media companies, who will demand that we sign over those rights as a condition of their patronage. Of course, these companies will be subsequently menaced and expropriated by the internet distribution companies. And while the media companies are reluctant to share their bounties with us artists, they reliably expect us to share their pain – a bad quarter often means canceled projects, late payments, and lower advances.
And yet, when a lack of competition creates inequities, we do not, by and large, reach for pro-competitive answers. We are the fallen descendants of a lost civilization, destroyed by Robert Bork in the 1970s, and we have forgotten that once we had a mighty tool for correcting our problems in the form of pro-competitive, antitrust enforcement: the power to block mergers, to break up conglomerates, to regulate anticompetitive conduct in the marketplace.
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Robert Reich (previously) served in the presidential administrations of Gerald Ford, Jimmy Carter, and Bill Clinton, was Clinton's labor czar, and sat on Obama's economic transition advisory board; though he is generally on the Democratic Party's left flank, his own history shows that he has credibility with the establishment wing of the party as well.
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I just published the 300th installment of my podcast, which has been going since 2006 (!); I present a reading of my EFF Deeplinks essay Adversarial Interoperability: Reviving an Elegant Weapon From a More Civilized Age to Slay Today's Monopolies, where I introduce the idea of "Adversarial Interoperability," which allows users and toolsmiths to push back against monopolists.
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I was honored to be invited to contribute to the New York Times's excellent "Op-Eds From the Future" series (previously), with an op-ed called "I Shouldn't Have to Publish This in The New York Times," set in the near-future, in which we have decided to solve the problems of Big Tech by making them liable for what their users say and do, thus ushering in an era in which all our speech is vetted by algorithms that delete anything that looks like misinformation, harassment, copyright infringement, incitement to terrorism, etc -- with the result that the only place where you can discuss anything of import is newspapers themselves.
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The University of Chicago Business School's Promarket blog has run a transcript of former antitrust enforcer Sally Hubbard's June 11 testimony before the House Judiciary Committee on June 11, 2019, where Hubbard discusses the ways that the monopolized and concentrated tech sector have eroded the margins of the news business, creating a "decline of American journalism."
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Back in 2017, a law student named Lena Khan made waves in policy circles with the publication of her massive, brilliant, game-changing 24,000-word article in the Yale Law Journal, Amazon's Antitrust Paradox, which revisited the entirety of post-Ronald-Reagan antitrust orthodoxy to show how it had allowed Amazon to become a brutal, harmful monopoly without any consequences from the regulators charged with ensuring competition in our markets.
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Austria has incredibly broad libel laws -- so broad that they prohibit disgruntled voters from calling politicians "oafs" or "fascists." Predictably, this gave rise to a legal dispute between an Austrian politician and Facebook, when the former ordered the latter to remove a comment containing these two insults, and the whole mess ended up before the Advocate General of the Court of Justice of the EU -- a person whose decisions are not binding, but are incredibly legally influential.
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In 2015, California enacted groundbreaking privacy legislation and in 2018, the state took up the matter again with even tougher rules that have been fought tooth-and-nail by Big Tech companies, many of whom are headquartered in the state.
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According to a widely reported rumor -- first published by the WSJ -- the DoJ is preparing to launch an antitrust probe of Google, though it's not clear on what basis such a probe would proceed.
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