A Federal Watchdog To Police Big Tech? Yeah, That'll Do The Trick, Senators...

Two US Senators have proposed legislation to create a government commission to tame Big Tech, an often uttered goal on both sides of the political aisle that has yet to be realized.

Elizabeth Warren (D-MA) and Lindsey Graham (R-SC) on Thursday introduced a bill called the Digital Consumer Protection Commission Act of 2023, which aims to amend the the Clayton Antitrust Act of 1914 to "establish a new federal commission to regulate digital platforms, including with respect to competition, transparency, privacy, and national security."

It was in 1914 coincidentally that the Federal Trade Commission Act was signed into law. In recent years, the FTC has been the American watchdog most concerned with policing digital platforms as part of its mandate to protect competition and consumers.

The senators' proposed Digital Consumer Protection Commission – or DCPC – sounds a lot like the FTC, whose boss Lina Khan has been trying to carry out the Biden administration's plan to moderate Big Tech, though without much success. The FTC failed to prevent both Meta's acquisition of VR biz Within Unlimited and Microsoft's merger with Activision Blizzard. Its attempt to force Meta to break apart Facebook, Instagram, and WhatsApp remains a work-in-progress. The case is back in court, refiled after a 2021 dismissal.

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The US Department of Justice, which also handles antitrust cases, did notch a recent victory by preventing book publisher Penguin Random House from acquiring Simon & Schuster – not really relevant to Big Tech. It has also filed search (2020) and advertising (2023) complaints against Google. Those cases remain unresolved and the usual suspects of Big Tech – Amazon, Apple, Google, Meta, and Microsoft – have yet to be inconvenienced by impotent political fuming about platform power.

Like the FTC, the DCPC will be composed of five commissioners appointed by the President. But those commissioners will serve five-year terms rather than seven.

The DCPC is expected to operate alongside the FTC and DOJ; two's company, three's a trust-busting crowd. It will be authorized to license large platform providers and to revoke that license – denying permission to operate in the US – under specific conditions. Yes, TikTok, we're talking about you.

The DCPC, should the bill become law, will be tasked with overseeing:

• Competition: There will be prohibitions on organizations giving their own products and platforms preferential treatment over rivals, and contractual agreements that harm customer choice. Conflicts of interest such as Amazon owning a marketplace in which it competes will be prohibited. And the commission will get to review mergers.
• Transparency: There will be a requirement for "clear terms of service and content-moderation practices." If only someone had asked for this sooner.
• Privacy: Despite Congress' inability to pass a national data privacy law, there will be guarantees that individuals have the right to access their personal data and to know when their data is collected and processed. There will also be target advertising limitations, and the establishment of responsibilities for data caretakers.
• National Security: Dominant platforms will have to be "owned by US citizens or have a US subsidiary." And there will also be limitations on where data can be processed and an obligation to identify bots.

This aspirational project has fans among advocacy groups and academics.

"Public Citizen is thrilled at the introduction of common sense legislation to create an agency focused on the digital platforms," said Lisa Gilbert, executive veep at the consumer rights nonprofit, in a statement. "The Big Tech companies have far too much power and leeway, and when it comes to critical issues like competition, privacy, and transparency a dedicated agency could make all the difference. We strongly support this effort."

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Woodrow Hartzog, professor of law at Boston University School of Law, similarly applauded the proposal. "This bill would fundamentally redirect dominant platforms away from exploitative business models by requiring trustworthy behavior for a safer and more sustainable future," he said in a statement.

The Chamber of Progress, which describes itself as a "center-left tech industry policy coalition," is less enthusiastic. The business group dismissed the bill because it would allegedly endanger popular services by preventing, for example, Google from offering Google Maps because third-party maps services exist.

"New bill, new agency, same old problems,” said Chamber of Progress VP of tech policy Koustubh 'K.J.' Bagchi, in a statement. "This legislation takes some of the unpopular ideas that sank bills like AICOA and bundles them up under a new federal commission. The reality is consumers don’t want to ban Google Maps or break up Amazon Prime whether that’s under a new commission or an existing agency."

We'll let you know if anything comes of this. ®