DL Seminar | A Genealogy of Digital Platform Regulation

Individual reflections by Tim Bernard, Armin Namavari, Annie Spahn, and Nicholas Agnihotri Burka (scroll below).

By Tim Bernard

Cornell Tech

As Google. Meta.Amazon. Much of the world’s population make use of platforms controlled by at least one, if not all of these companies, on a daily basis. Both their market power and their societal power is undeniable, and there has been an increasing appetite to effectively regulate them, along with other major platforms. Elettra Bietti’s paper and presentation convincingly situate contemporary regulatory attitudes in an ideological framework of neoliberalism, and suggests how much more impact regulation might have if it were able to break free of neoliberal assumptions about law, freedom and power. Bietti traces the major strains of political thought about the internet using a “genealogy” framework, that usefully captures and collects their most pertinent features, without committing to direct historicity or precision (she emphasizes that individual positions can include elements from multiple categories). In the earlier days of the internet (1990s), the three groupings were:

• An influential anarcho-libertarian group, highly utopian, and epitomized by John Perry Barlow’s “Declaration of the Independence of Cyberspace.”
  

• A mainstream liberal tendency, seeing law as vital for nurturing and protecting a “free”internet, including legal scholars Joel Reidenberg and Laurence Lessig.
  

• A few critical voices, maintaining that law is a tool of the powerful and tends to serve their own interests.
  

Their ideological heirs today are, as classified by Bietti:

• The conservative [1] / libertarian resistance to regulation, popular among Silicon Valley VCs and some entrepreneurs such as Elon Musk and Peter Thiel.
  

• A dominant liberal/neoliberal group, promoting approaches such as self-regulation, protecting market competition, and notice and consent mechanisms.
  

• A still small, but growing critical/ socialist group, critiquing the capitalist foundations of today’s platform economy (Shoshana Zuboff is perhaps the most well-known of these, though not as nuanced as others such as Julie Cohen). By laying out this framework, Bietti seeks to enable scholars, legislators and industry policymakers to see how neoliberal dogmas, such as the primacy of individual choice and the efficacy of free markets underpin so much existing law and contemporary proposals, in order that they may be able to look beyond them to solutions that can better promote other human values and the collective good.

Approaching this topic from my area of focus, content policy, I was struck by one of the regulatory pathways that Bietti proposes as a partial departure from neoliberal consensus, “Platforms as Public Utilities.” (64-66) This includes the possibility of outright nationalization (or municipalization) of platforms. As she notes, this has some support amongst conservatives, includingClarence Thomas, but also DonaldTrump. Trump-friendly state legislatures have followed up with “must-carry” bills (Florida’s SB 7072 and Texas’s HB 20 – though given federal law, Eric Goldman refers to these as purely “performative”). Nationalist governments in Poland and Hungary have also made efforts to mandate social media platforms to repost or keep up content that they would seek to remove.

Though these approaches could be defended as “liberal,” and in defense of free speech, or as “critical,” and seeking to radically undermine the private power of platforms, they also shed light on a major danger of putting these platforms under state control. If we didn’t know enough about the authoritarian tendencies of Trump and Orban, we have only to look to their illiberal counterpart, VladimirPutin, who has just imposed, not a must-carry law this time, but a “fake news” law, including a prohibition on publishing content that refers to the invasion of Ukraine in those terms. While it is unclear if platforms would be liable under this law, TikTok saw this as reasonenough to ceaseoperations in Russia. It is easy to guess what content a government-controlled HungarianTwitter may keep up, promote, and take down.

Perhaps, then, instead of imposing the rules of a utility or nationalizing social media (and other) platforms, it may be worth exploring the possibility, inspired by the US healthcare proposal, of creating public options, platforms that co-exist with the private offerings, and are unmoved by the capitalist imperatives that can lead to so many harmful outcomes.

This could be combined with other legal options suggested in Bietti’s article, including interoperability to sap the current major players’ head start advantage, and decentralization (which may, in the US, also point to a way to avoid First Amendment obstacles to content moderation).

References:

[1] In the Q&A, Bietti acknowledged that many identifying conservatives today (including Trumpists) would not fall into this category.

By Armin Namavari

Cornell Tech

Widespread vaccine misinformation during a global pandemic, children eating tide pods, and rampant online radicalization. How exactly did we get here? The founders of the Internet viewed it as a boon for democracy and individual rights. Designed to be decentralized and free from the corruption and influence of governments, their Internet led to the complex social problems and concentration of power we see today. Large private platforms, such as Google, Meta, and Amazon, dominate the web. In response, Web3 idealists argue that blockchains, NFTs, and DAOs will allow individuals to reclaim this power from the massive tech monopolies. The key to their digital utopia lies in the fact that their technology, by contrast, is designed to be decentralized and free from the corruption of… wait, how exactly did we get here and are we doomed to repeat ourselves? To understand our present and future requires a rich understanding of the past. Elettra Bietti offers a valuable analysis of this history in her paper A Genealogy of Digital Platform Regulation. Bietti gave a talk on this work at the DLI Seminar on March 10th. She uses the genealogical method to tell a story of how a free, decentralized, and open Internet led to powerful private platforms that perpetuate social harm.

She lays out two stories to be precise: the story of Internet regulation and the story of platform regulation. In these parallel timelines, she examines the evolution of thought surrounding freedom, power, and law. Three main clusters of views emerge from this analysis: libertarian, liberal/neo-liberal, and critical. A myopic pursuit of freedom and decentralization as led by anarcho-libertarian visions, Bietti argued, is what led to the accumulation of power in platforms that we see today. Of the three clusters she outlines, Bietti argues that neoliberalism dominates our current approaches to platform regulation. This is evident from the emphasis that regulation places on competition, consumer freedoms, and efficiency. However, framing markets and efficiency as our primary concerns does not enable us to effectively tackle issues of disinformation, polarization, and inequality. Power continues to accumulate in unhealthy ways and toward harmful effects. Understanding the rigid ideas that limit our thinking is one of the main benefits of genealogy as an approach. This understanding enables us to free ourselves from these limits and expand our thoughts surrounding digital platform regulation moving forward.

Bietti homed in on self-regulation and competition as classic neoliberal ideals that manifest in contemporary platform regulation. Examples of self-regulation include the Facebook oversight board and AI ethics boards. Transparency and accountability mechanisms are seen as safeguards against platforms abusing their power in a self-regulatory regime. Regulation surrounding competition emphasizes the freedom of consumers and businesses. This conception of freedom doesn’t leave space for considering end users as anything other than consumers, hindering our ability to consider the rights of citizens subject to platform power.

Next, Bietti addressed two ideas that lie somewhere between and across (neo)liberal and critical thought: utilities and decentralized platform governance. Viewing platforms as public utilities has the potential to enable radical perspectives on platform regulation. At the same time, this viewpoint can be adapted to serve neoliberal interests such as preserving competition and free markets. According to Bietti, examining these different schools of thought and modes of regulation through the lens of law, power, and freedom helps disassemble these ideas so that we can eventually build something we’re happier with. The question then becomes how we can avoid repeating the errors of the early days of the Internet, how we can avoid strictly adhering to neoliberal perspectives, and in Bietti’s words “imagine more hybrid, discontinuous, egalitarian digital spaces, and how to embed public values in private digital environments.”

The Genealogy Bietti provides is an illuminating perspective on existing regulation surrounding content moderation. Section 230 of the Communications Decency Act comes to mind as a prime example. At its core, this piece of legislation limits the liability platforms have for hosting the content their users share and post. Simultaneously, platforms will not be penalized for removing or moderating user-generated content. This is a prime example of self-regulation that often hinges on a neoliberal argument: platforms are incentivized to moderate content well, or else users will have a horrible experience and move to a competing platform that moderates better. This argument emphasizes business freedoms, consumer freedoms, competition, and free markets. A more critical perspective would examine factors not captured by the neoliberal framework. What is the disparate impact of content moderation on particular groups of users, especially marginalized users? Who are the people sifting through harmful content for hours on end and what are the long term psychological harms of doing so? How does the power wielded by moderators shape and reconfigure digital spaces? These questions are difficult to answer, but limiting ourselves to a neoliberal understanding of platform regulation would have made them impossible to ask.

Bietti’s Genealogy also prompts us to reflect on how the design of a platform enables the accumulation of power among users who amass large followings. With large followings come not only economic power (through monetization via advertisements or endorsements) but also political power. As an example of the latter, a recent Wall Street Journal article describes how TikTok influencers were briefed by the White House on how to talk about the Russia-Ukraine War. This provides a fascinating example of how forms of traditional old power seek out the influence of non-traditional new power. This is not even the first time: last year the White House recruited influencers to promote COVID-19 vaccination. These instances prompt us to consider the power that influencers wield and if that power is something that our regulatory frameworks must reckon with. The power that enables the dissemination of important public health messaging and enables activists to organize over social media is the same power that could be used to spread misinformation and organize acts of violence. Dealing with this power in a conceptual and regulatory way remains an open challenge for academics, policy-makers, and citizens.

By Annie Spahn

Cornell Tech

On March 10th 2022, Elettra Bietti gave a DLI seminar talk titled “A Genealogy of Digital Platform Regulation” in which she went through the analysis and story of digital regulation originally from a chapter of her dissertation. However, Bietti did not only take the audience through a comparison of how regulation has evolved from the 1990s, where it was concerned with the internet, to now where we are dealing with these large platforms, like Amazon, Google, Facebook, but she also provided an answer to an important question that I have been hearing quite a bit of lately. With the number of technological advancements made in the last two decades, we find ourselves dealing with pre-existing issues, and new ones, in new dimensions. Being a connective media Masters student, I am taking a lot of classes that are looking at how these technologies are interacting in society and the limitations and struggles of the current regulations to adequately control, if we can even say what that would look like, the digital space. As with most things, it’s much easier to point out the problems rather than ideate on the solutions and as a result I feel most of the discussions I’m involved with focus on picking out the issues with little time spent on coming up with solutions. This is not because my professors are inadequately prepared and have just decided to skip the solutions part of the discussion but rather because there isn’t a clear solution to many of the problems being brought up by this new digital space, which to compound the issues is constantly changing in itself. In this talk, Bietti lays out a plan for moving forward to tackle today’s digital issues and ultimately provide a potential solution or pieces of a solution that can start working towards a better regulated digital space.

Bietti began her talk with the goal to review the literature and contexts to build a genealogy of regulation that will allow her, and us, to gain a better understanding of why “we” are so bad at regulating tech platforms. In creating the genealogy, Bietti hoped to use it to look for recurring trends or patterns, something that can inform how regulation has evolved the way it has and what biases or underlying errors occurred that we should heed looking forward towards new regulation. The genealogical method that Bietti took was one leaning more towards storytelling with specific focus on three key concepts: law, freedom, and power.

The genealogy started with a look at the dimensions of law, freedom, and power in the 1990s where the internet was decentralized, small, and was much more community based. We walked through three schools of thought; Anarcho-Libertarianism, which can be categorized as a view of negative freedom and desire for freedom of state, Liberalism, which was more of a reaction to Anarcho-Libertarianism that focused on a re-understanding the place of state and law in the digital sphere, and Critical Views, which focused on power and the different ways it can manifest itself.

Bietti then situated these three views in today's digital landscape, a much more centralized privatized market space where a few monopolies hold the power (i.e. the Digital Platform era). In the digital platforms, Anarcho-Libertarianism was now closer to Libertarianism/Conservatism, where the emphasis on anarchism was gone but there was still market optimism and a de-regulatory ideology, Liberalism was closely associated with Neoliberalism, which holds fundamental rights in great importance but there was still an emphasis on preserve competitive markets and consumer and entrepreneurial choices, and Critical Views remained the same, with a focus on power but also brought novel ways of reimagining the digital economy and how laws would need to be malleable to be in that space.

Bietti concluded her talk by offering some steps forward and how her work was critical in that process. The goal of creating such a genealogy was to bridge the gap between deconstruction and reconstruction, to move forward by first looking back. Using the genealogy Bietti has created, one can use it as an interpretive lens, or even as a reliable repo of epistemic examples and source material, to tackle and diagnose the limits of existing regulatory visions and policies. This genealogy also prompts regulators to re-examine the different dimensions of the digital economy, specifically looking at what private vs public really means and what to do with the divide, how to integrate politics and markets together, and how to design an infrastructure that puts the collective interest first over the individual. Bietti recommended that now we need to experiment with methodological changes that come with historical validity to find alternatives that better fit our digital needs and ultimately having more public regulation or somehow finding a way to decentralize the platform economy.

As mentioned before, Bietti not only provided a thorough analysis of the current and historic regulation methodologies and visions but also in doing so provided a means forward. Work like this is extremely important, especially in these early stages of some digital regulation (think AR/VR), because digital regulation is a complex and ever changing environment that can seem almost too daunting to even begin to tackle. However, when we approach this space grounded in our past and aware of the evolution that took place in order to get us to the place we are now, we are better equipped to get a better handle on digital platform regulation.

By Nicholas Agnihotri Burka

Cornell Tech

As Elettra Bietti’s talk, from her paper of the same name, speaks to the ideals and schools of thought that have shaped digital platform regulation. Using precise language of ideal concerns within material and political realities, she addresses the stakes of digital platform regulation. Joining philosophical tradition, she begins the paper by meeting the question of freedom by defining it as “a situated concept…”, and places it within the scope of law, “defined in terms of morally urgent protections that it is feasible to give in a given social and material context”.

So framed her talk, articulated in terms of three core arguments, beginning with what I agree as a “morally urgent” argument - “complacency about freedom, openness, and decentralization can be dangerous”. Her second argument elaborates what constitutes “complacency” - “neoliberal hegemony”, and her third explains how we humans arrived at this point in time with a “genealogy / history”.

In order to situate freedom digitally in her paper, she outlines different visions of freedom, and of “cyberspace” itself, paradigmatic to three schools of thought that shaped “early 1990s Internet regulation debates”: “anarcho-ilbertarian views portray the Internet as an autonomous and utopian sphere of free social interaction… liberal views include… the idea that code is law [among others]… a smaller group of critical thinkers… [said] power and commercial logics effectively governed the Internet”.

To my excitement, in her talk Elettra Bietti leveraged this historization in order to incisively characterize “two visions” of the internet: the internet of utilities, and the decentralized platform economy. In my view, these describe the two essences of a utopian internet: the fulfillment of basic needs in the information age (“utility”), and the dispersal of power (“decentralization”). Un-fortunately, neither have realized their potential, though both have burgeoning successes. The decentralized platform economy, as Elettra Bietti articulated it, has largely enacted a conservative vision of decentralization dependent on competition under capitalism - a neoliberal hegemony that in effect has not decentralized power democratically, nor could it usefully. Indeed, many companies have accomplished something like monopolistic control of the market.

Elettra Bietti carefully articulated that she believes hope has justification, and named some movements towards decentralization: interoperability, co-ops, public/small-scale interventions. Challenges loom, even as regulations (interventions) attempt to make “constraints on platform power”, they sometimes limit competition and decentralization in the same stroke - for example, GDPR inhibits the development of small businesses. I recognize the “moral urgency” of harms committed with the internet, with the power leveraged by those who have “owned” the internet, and with its hardwares and softwares and popular platforms, shaped the minds and lives of those who use the internet and by many-proxies, Earth itself. By “freeing” our-selves, at each and every level, of these platforms and of these powerful designs, we can em-power ourselves - the “utility” of “decentralization” - in order to re-orient our digitally-intertwined economy to our needs and the desires that nourish and spring from them, invigorating us to rein-habit, rebuild and repair our communities and the Earth.