Two years after the twin historic events that rocked the global system–the Brexit referendum and the US Presidential election–lawmakers in Britain and the United States are heading toward similar conclusions on what to do about the problems at the intersection of technology, media and democracy that these events laid bare. This week in Britain, the House of Commons Committee on Culture, Media, and Sport released its Interim Report on Disinformation and ‘Fake News’, while in the United States Senator Mark Warner, the Ranking Democratic Member of the Senate Intelligence Committee, released a draft white paper on Potential Policy Proposals for Regulation of Social Media and Technology Firms.
Both the Committee and Senator Warner have accessed and analyzed vast amounts of information about the problems democracies face at this intersection. Senator Warner, in his role as the Democratic leader of the Senate Intelligence Committee, has become immersed in the investigation into Russian election interference which has led to a major focus on the role of the technology companies in spreading misinformation, and included testimony by key executives at Google, Twitter and Facebook, including Facebook CEO Mark Zuckerberg. In hearings on Wednesday, Senator Richard Burr, the Republican Chairman of the Senate Intelligence Committee, praised Warner for raising awareness of computational propaganda and leading on these issues. The Parliamentary inquiry, led by MP Damian Collins, represents perhaps the most extensive look into these issues anywhere in the world, and is based on twenty oral evidence sessions and more than sixty witnesses subjected to more than 3,500 questions in extensive hearings since the beginning of the year. Both probes have sought expert perspectives, written evidence, and coordinated with law enforcement across jurisdictions (disclosure: I participated in a background information session with the House of Commons committee earlier this year, and have suggested questions to Congressional investigators ahead of hearings in the United States).
While the ideas and conclusions published in these reports are far from becoming the law of the land on either side of the Atlantic, they do represent a growing view on what such modern democracies must do to improve public discourse online. Here are five themes that are consistent in both documents:
1. Government must act urgently to make the technology companies liable
Both papers lament that the respective governments have done too little to address the deep problems that have become apparent in recent years, and both suggest reforms such as new regulatory bodies and new roles and responsibilities for existing ones. But it is not just governments that have been caught off guard. The lawmakers hold the technology platforms responsible for their failure to act, and for their reluctance to engage with government.
In public statements, Warner has repeatedly called on the technology companies- and Facebook in particular- to provide more information to the government. “We need answers from Facebook. The whole story, now, not six months from now,” he tweeted in June. Warner calls the platforms “repeatedly flat-footed” in response to threats such as the Russian interference campaign the paper. The Brits are less charitable- the House of Commons report is exasperated with what it sees as “the failure on occasions of Facebook and other tech companies, to provide us with the information that we sought.” The Commons report repeatedly takes Facebook specifically to task for failing to comply with the requirements of existing rules, misleading the Committee and refusing to participate in its inquiry, all of which left citizens exposed to disinformation on its platform.
Fixes to election-related advertising and communications on technology platforms seem necessary and obvious on both sides of the Atlantic, and many lawmakers want to explore reforms to grapple with thorny issues such as bots and anonymity on social media, though these topics are fraught. But two specific changes proposed represent potentially more decisive actions that could open the technology companies up to significant new responsibilities and liabilities.
First, in Britain, the Commons report wants to see the “platform vs. publisher” debate settled. “Social media companies cannot hide behind the claim of being merely a ‘platform’, claiming that they are tech companies and have no role themselves in regulating the content of their sites,” the Commons report argues. “That is not the case; they continually change what is and is not seen on their sites, based on algorithms and human intervention.” And yet they do not have all the features of a publisher, which tends to employ rather more human judgment. So the Commons report suggests establishing a new class of company that would allow the government to redefine the liabilities the tech companies could face.
Warner doesn’t go so far as to challenge the definition of the technology companies as platforms, but nevertheless suggests opening the door to new liabilities. Warner entertains the possibility of changes to Section 230 of the Communications Decency Act–the federal rule that currently immunizes the technology companies from state tort and state criminal liability. Warner notes that the coming wave of technologies that will make it easier to manipulate people’s images and video, such as deepfakes, may necessitate changes to the liability that technology platforms should face in order to make sure they provide redress to individuals targeted. The white paper recognizes the problems with this approach– but nevertheless posits it should be considered.
2. Data protections and privacy must be strengthened
Both documents project an urgent need to protect personal data. Warner’s white paper entertains a number of ideas to strengthen consumer privacy and to give individuals more leverage over their own data. Warner entertains establishing information fiduciaries, an idea advanced by Yale’s Jack Balkin and Harvard’s Jonathan Zittrain that would have the technology companies agree to a set of data privacy rules and obligations as an operating condition. Warner contemplates giving more privacy rule-making authority to the FTC, and even entertains introducing legislation to mimic the European Union’s General Data Protection Regulation (GDPR), though Warner’s paper worries some aspects of GDPR are too extreme or difficult to administer in the United States.
Both documents want the technology companies to demonstrate more transparency to consumers, including more regular, specific alerts for consumers as to how their data is being used, shared, sold and otherwise monetized. Both documents seek mechanisms to permit audits of data practices to monitor for fairness, security and other indicators of responsible operation.
3. The scale and monopoly power of technology platforms must be addressed
Both documents express concerns about whether the enormous scale of the technology platforms should prompt inquiries into whether they are behaving as monopolies that should be broken up or otherwise constrained. “The rise of a few dominant platforms poses key problems for long-term competition and innovation across multiple markets, including digital advertising markets (which support the internet economy), future markets driven by machine learning and artificial intelligence, and communications technology markets,” Warner’s paper states. “The dominance of a handful of powerful tech companies, such as Facebook, Twitter and Google, has resulted in their behaving as if they were monopolies in their specific area,” notes the Commons paper.
Both documents lament that the problem in assessing the harm to consumers by the scale of these companies is complicated by the fact the business models are based on providing free services. As Warner’s paper notes, the bargain is continuously amended in favor of the platforms. Similarly, as one expert told the Commons committee, the “question of the concept of how we run competition policy in an era where many goods and many other new innovations have zero marginal costs and are free is intellectually difficult.” The answer on both sides of the pond appears to be more transparency — more insight into the economics of these businesses and their function to make sure consumers are getting a fair deal and that the competitive environment is healthy.
One good idea to preserve competition presented in the Warner paper is to open federal datasets to university researchers and qualified small businesses/startups, since “access to large datasets increasingly represents the largest barrier to innovation — so much so that university researchers are steadily leaving academia not only for higher salaries but also for access to unrivalled or unique datasets to continue their work.” Right now the scale of the data held by the technology companies makes them unmatched and in many respects inscrutable from the outside; perhaps government could use its own capacities to offset that advantage.
4. Democracies need to invest in digital literacy
The lawmakers also want to invest in improving the ability for citizens to serve as a first line of defense against information warfare. “Addressing the challenge of misinformation and disinformation in the long term will ultimately need to be tackled by an informed and discerning population of citizens who are both alert to the threat but also armed with the critical thinking skills necessary to protect against malicious influence,” contends Warner’s paper. “Digital literacy should be the fourth pillar of education, alongside reading, writing and maths,” says the Commons report. Both documents suggest investing in the young to build lasting resilience.
But how to do it? The Commons report suggests placing a levy on the technology companies to raise funds to finance a “comprehensive educational framework” that would reach young people in schools and the public through information and awareness campaigns. Levies are often deployed as a means of paying for externalities created by industry–and I have recommended them in the past for just this purpose. However, Warner is wise to reference Danah Boyd’s caution on digital literacy efforts: “More important than building capacity for individuals to scrutinize sources is cultivating a recognition that information can (and will) be weaponized in novel ways, along with an understanding of the pathways by which misinformation spreads,” his white paper notes.
5. Democracies must do more to deter disinformation from adversarial state actors
It should not be surprising that there are parallels in the approaches on this issue, given the lawmakers who authored both reports came together at a recent Transatlantic Commission on Election Integrity that gathered US, Canadian and EU political representatives, led by Senator Warner and Senator Marco Rubio, to address the Russian threat. Both reports suggest that the US and UK governments must take more proactive steps to defend their countries from foreign adversaries such as Russia. The US “must spell out a deterrence doctrine, so that our adversaries don’t see information warfare or cyberattacks against us as a ‘free lunch’,” argues Warner, while the Commons report is replete with recommendations for more coordination between different parts of the UK government and more sharing of information with allies such as the US and other EU countries.
Needless to say, in both countries, it is necessary for investigations of Russian efforts to interfere in democratic processes to complete their tasks. In the US, the Mueller investigation will hopefully soon deliver a definitive account of Russian interference in the 2016 election; in the UK, questions about Arron Banks, the Leave campaign and Russian influence are belatedly being asked, as new evidence has emerged in part thanks to the House of Commons inquiry.
Certainly, the debate on these issues is not over. And the technology companies will have their say. In the United States, for instance, companies including Facebook and Google are spending record amounts on lobbying. But these two reports–working drafts though they may be–together suggest a way forward. The work is urgent. “Our democracy is at risk, and now is the time to act, to protect our shared values and the integrity of our democratic institutions,” states the House of Commons report. Hopefully, these two legislatures–operating in two countries in separate but similarly challenging political environments–can summon the will to act.