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Many media outlets pronounced the internet dead Friday, following the Federal Communications Commission’s (FCC) reversal of the 2015 Open Internet Order. While the internet is alive and well, it is the imposition of price controls under the name of net neutrality that is forestalled, at least for now. Meanwhile, an “open access information commons” in which the government regulates both content and networks to ensure “neutrality” is the goal for many policymakers. Platform neutrality regulation encompasses a grab bag of concepts such as hate speech, fake news, safe spaces, brand safety, content take down, the right to be forgotten, and market power. In other words, digital neutrality policy is a set of rules, realized through restrictions on software systems, to force companies to behave in a way that achieves policy advocates’ preferred outcomes.
Using ideas to justify regulation when the law doesn’t
Like “public interest,” neutrality is an amorphous but powerful political concept that has been used by administrative agencies to enact rules, even when they don’t have the statutory authority to regulate. During the Obama years, the FCC advanced a political agenda by saddling the Comcast-NBCU and Charter/TimeWarner mergers with net neutrality provisions. By placing these provisions within a consent decree, the FCC circumvented the will of the people through Congress and immunized itself from judicial review but enabled the Democratic Party to achieve its policy goals.
Earlier this year, Sen. Al Franken (D-MN) observed that “Facebook, Google, and Amazon — like ISPs — should be ‘neutral’ in their treatment of the flow of lawful information and commerce on their platforms.” Using language that appears to be adapted from the 2015 Open Internet Order, he continued: “With this unprecedented power, platforms have both the incentive and the ability to redirect into their own pockets the advertising dollars that once fueled the newspaper business.” Now that Franken is sullied, Sen. Elizabeth Warren (D-MA) has brandished the “public interest” rhetoric from the bully pulpit in an attempt to exact concessions from internet service providers (ISPs) and Silicon Valley companies alike.
France is ahead of the game
In 2011, French President Nicolas Sarkozy established the Conseil national du numérique (CNNum), an independent advisory commission of 30 people appointed by the president to provide thought leadership on the digital society and economy for French, European Union (EU), and global policymakers such as the United Nations. Their paper, “Platform neutrality: Building an open and sustainable digital environment,” describes the business strategies of GAFTAM (Google, Apple, Facebook, Twitter, Amazon, and Microsoft) as “acquisition, diversification and exclusion” and describes their regulatory solutions.
Earlier this year, French telecom regulator ARCEP proposed coherent “platform loyalty regulation” as part of its net neutrality report to the European Commission including concepts of transparency (“does the platform make it possible to clearly understand its operating principles?”), auditability (“are there means to verify what is published on the platform?”), societal impact (“what is the impact of the platform’s activity on society?”), and a reputation lever (“to encourage players to develop virtuous practices?”). French and European authorities have expressed their preference to favor European firms, and while the effort is seemingly benevolent, the ostensible goal is to use regulation, like other EU efforts such as the General Regulation for Data Protection, to reduce the market power of US firms, a goal not otherwise achievable through French law or innovation by European firms.
Regulation to ensure preferred electoral outcomes
Another goal of platform neutrality regulation is apparently to stop users from consuming information that leads them to make the “wrong” choice at the ballot box, such as a vote for Brexit or for Donald Trump. Presented yesterday at the United Nations Internet Governance Forum, “Platform regulations: How platforms are regulated and how they regulate us,” the Official Outcome of the UN IGF Dynamic Coalition on Platform Responsibility, suggests that the spread of “fake news” on Facebook is responsible for unwanted election outcomes. The book offers no empirical proof for this assertion. Separately, a cursory review of the data for US-based Facebook users and Trump voters suggests that there is no connection. Facebook use is highest among people age 18–34. This group supported Hillary Clinton in significantly greater numbers, whereas President Trump got much of his support from voters age 45 and older. This age group has made disproportionately less use of Facebook. (See Karlyn Bowman’s analysis of the five kinds of Trump voter.) Recent peer-reviewed research suggests that if fake news could swing an election, it would have to have been significantly more pervasive. The authors estimate that voters saw an average of one fake news story on social media during the 2016 election and that is associated with 0.02 percent change in their vote.
If anything, regulation probably created the market power of internet platforms today. Net neutrality norms, which advocates have succeeded to implement even without formal rules, have allowed these firms an artificial subsidy in the transmission of their data and protections from market entry by firms and business models that would create competition in online advertising. The solution to market power has always been permissionless innovation, the ability to deploy technology and offers without the interference and distortion imposed by government. Neutrality regulation, however good it sounds, is anything but neutral.
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