By EFF Deeplinks Blog
The power of the Internet historically arose from its edges: innovation, growth, and freedom came from its users and their contributions, rather than from some centrally controlled core of overseers. But today, for an increasing number of users, there is a powerful center to the net—and a potentially uncompetitive and unrepresentative center at that.
The whole Internet itself is still vast and complex, enabling billions of users to communicate regardless of their physical location. Billions of websites, apps, and nearly costless communications channels remain open to all. Yet too many widely relied-upon functions are now controlled by a few giant companies.
Worse, unlike previous technology cycles, the dominance of these companies has proven to be sticky. It’s still easy and cheap to put up a website, build an app, or organize a group of people online—but a few large corporations dominate the key resources needed to do those things. That, in turn, gives those companies extraordinary power over speech, privacy, and innovation.
Google and Facebook dominate the tools of information discovery and the advertising networks that track users’ every move across much of the Western world. Along with Apple, Microsoft, Twitter, and a few similar companies, they moderate an enormous volume of human communication. This gives them extraordinary power to censor and to surveil.
Amazon dominates online retail in the United States and back-end hosting across much of the globe, making it a chokepoint for a broad range of other services and activities. A few credit card networks process most online payments, giving them the power to starve any organization that relies on sales or donations.
Even more fundamentally, most people in the U.S. have little or no ability to choose which company will connect them to the Internet in the first place. That gives a few broadband ISPs the power to block, throttle, and discriminate against Internet users.
Civil Liberties at Stake
A lack of competition and choice impacts nearly every facet of Internet users’ civil liberties. When so much of our interaction with friends, family, and broader social circles happens on Facebook, its arrangement and takedowns of content matter. When so much search happens on Google, and so much video discovery on YouTube, their rankings of results and recommendations matter.
When Google, Facebook, and Amazon amass a huge trove of people’s communications as well as data about purchases, physical movements, and Internet use, their privacy policies and practices matter. When Comcast and AT&T are the only options for fixed broadband Internet access for millions of people, their decisions to block, throttle or prioritize certain traffic matter.
The influence of these companies is so great that their choices can impact our lives as much as any government’s. And as Amazon’s recent sale of facial recognition technology to local police demonstrates, the distance between the big tech companies and government is shrinking.
Diverse Voices Need Diverse Options
Careful action to bring a variety of options back in these important portions of the Internet could re-empower users. Competition—combined with and fostered by meaningful interoperability and data portability—could let users vote with their feet by leaving a platform or service that isn’t working for them and taking their data and connections to one that does. That would encourage companies to work to keep their users rather than hold them hostage.
More competition can also strengthen civil liberties. Innovators could develop alternative apps and platforms that safeguard their users’ speech, protect their privacy, foster community, and promote constructive debate, confident that those tools will have a level playing field to reach potential users.
And those alternatives don’t have to be commercial: decentralized, federated, or other co-operative solutions can put power back into the hands of their users, giving them the ability to change and adapt tools.
Increasing competition by itself won’t fix all of these problems. But it’s one of the few strategies that, if handled correctly by courts and policymakers, has the promise of opening up space for innovation from the bottom up, driven by individuals, small businesses, and communities with great ideas.
The good news is some competition does exist. We have surveillance-free search by companies like DuckDuckGo and Qwant, open source social media tools like Mastodon and Secure Scuttlebutt, independent services like Snapchat and Yelp, and competitive ISPs like Sonic, just to name a few. But many of these are under threat from the giants, and many, many more options are needed.
Antitrust Law Needs A Shot in the Arm
So how do we get there from here? One avenue may be antitrust law (or, internationally, competition law), which is supposed to focus directly on promoting competition and avoiding abuses of monopoly power. Unfortunately, although it was once a powerful “charter of freedom,” U.S. antitrust has lost its vigor in recent years, through a combination of lax enforcement and a narrow judicial and academic focus on avoiding higher short-term prices for consumers.
The result is that the current doctrine has little to say about consolidation of power and the resulting reduction in user choice on the Internet where powerful services have business models that make them seemingly “free” to users. The recent court decision approving the merger of AT&T and Time Warner is just the latest example.
Still, antitrust enforcement has played an important role in the Internet’s development. The explosive growth of the Internet in the 1990s owes a lot to the Department of Justice’s breakup of AT&T’s telephone monopoly in the ‘80s. That antitrust action spurred ISPs to use the telephone system to connect people to the Internet.
And the government’s antitrust case against Microsoft over its abuse of the Windows operating system monopoly (1998-2002), though ultimately unsuccessful, did effectively force the company to abandon its practice of strangling newer competitors in their infancy (including the nascent Google and Amazon).
Today, voices from across the political spectrum are looking at new approaches to antitrust. The Federal Trade Commission, one of the U.S. government’s antitrust enforcers, has announced a series of public hearings on updating antitrust enforcement for today’s Internet, to take place in September. This is welcome, and we’ll be joining the conversation.
A fresh look at U.S. antitrust doesn’t require abandoning a rigorous approach grounded in economics and practical experience. Declines in the quality of products and services are a harm that antitrust law recognizes. And as EFF has long advocated, avoiding censorship and protecting users’ privacy are at the heart of any definition of quality for a digital service or product.
As a start, we encourage closer scrutiny of proposed mergers and acquisitions. Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model.
We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.
Competition Impacts of CFAA, DMCA 1201, and Terms of Service
Antitrust isn’t the only area of law that has a role to play here. EFF has long battled three legal doctrines that have been misused to thwart competition: the Computer Fraud and Abuse Act (CFAA), section 1201 of the Digital Millennium Copyright Act (DMCA), and the unthinking enforcement of website terms of service.
The CFAA (and its state law counterparts) have been used to threaten interoperable tools. For example, Facebook sued a company Power Ventures for creating and deploying a tool that let users effectively unify their social media feeds and contact lists.
A variety of companies, from major entertainment companies to printer manufacturers, have used the DMCA to try to control the design and functionality of our devices.
And big Internet companies use overreaching terms of service to prohibit reverse engineering and similar activities, blocking competitors who would build upon and interact with existing services.
Any effort to spur competition needs to include reform of these legal tools.
Bad Solutions Are Not Solutions
It’s tricky to ensure that rules created to curb the Internet giants don’t cement their dominance. We’ve already seen proposals for government-imposed “platform neutrality,” or filtering mandates like the EU’s proposed Article 13, which would require prohibitively expensive (and ineffective) forms of editorial control.
We’ve also heard calls to further erode Section 230 of the Communications Decency Act, which protects Internet services from liability for the actions of their users. These proposals, which do not seem to be grounded in any evidence that Section 230 aids in the creation of monopoly power, paradoxically threaten to impose costly burdens that only the Googles and Facebooks of the world can meet.
Vigorous merger reviews, and potentially breaking up companies that use their dominance in one area to squelch competition in another, may be better alternatives. Other alternatives may arise from public pressure for the companies to use open standards for interaction between social networks, and the ability to use independently developed, user-empowering tools in connection with online services.
Promoting Diversity and Competition To Protect Speech and Privacy
In the coming weeks, we’ll be delving into these areas: exploring what future competition and diversity in the networked world should look like, how interoperability and data portability could be achieved, and how antitrust, along with other tools, can help get us there.
For people who care about speech, privacy, and innovation, it’s time to take a hard look at how to level the playing field, reduce the power of the large platforms and foster the re-emergence of a multiplicity of online services and tools that serve and empower us, not the other way around. Our free speech, privacy, and continued innovation depend on it.