Over a year ago, Mark Zuckerberg called for the U.S. to adopt a national privacy statue “in line with the European Union’s General Data Protection Regulation.” Congress should take the Facebook CEO at his word. But it should pass legislation aimed at throwing a comprehensive regulatory net around Facebook and other social media companies. These companies hold a central place in today’s economic, social and political life and the normal forces of competition have failed to ensure that their conduct advances the public interest.
Social media companies are different from the telecommunications companies, cable operators, and broadcasters that are regulated by the Federal Communications Commission. But they are their own new form of digital media, and likely to become the dominant medium for cultural, economic and political exchanges in the 21 century. Already, according to Pew Research, about one in five Americans get their political news from social media. But these increasingly essential platforms face no regulations that ensure that their behavior protects the public interest in privacy, free expression and competition.
Congress should establish a new bureau at the FCC to regulate social media companies in the public interest. It would have authority to (1) protect the privacy interests of social media company users, (2) supervise social media content moderation practices, with the overarching goal of protecting the right of users, established by Article 19 of the Universal Declaration of Human Rights, “to seek, receive and impart information and ideas…” and (3) promote competition to Facebook as well as protecting the competitive interests of companies such as news organizations that rely on Facebook for their own business.
The FCC has extensive experience in each of the areas, having regulated traditional electronic media for generations to ensure the wide availability of affordable communications services, to promote telecommunication competition, to protect the privacy rights of cable and telephone customers and to uphold the fundamental principle of U.S. communications policy of seeking “the widest dissemination of information from diverse and antagonistic sources.”
The new law should impose on dominant social media companies new privacy duties with the aim of curbing their power to extract information from their captive customers. These rules should require dominant social media companies to demonstrate that their data practices are justified by consumer consent, contractual necessity or legitimate interest, require them to abide by special duties of care, loyalty and confidentiality, prohibit them from using technology designs that are unreasonably deceptive, abusive or dangerous, and perhaps bar specific data uses.
To protect the free expression interests of their users to impart and receive information and ideas, dominant social media companies should face requirements for transparency. This would include public disclosures of the operation of their platform content moderation programs, detailing their content rules, their enforcement techniques, their complaint procedures, and providing explanations of their moderation decisions, and appeal rights.
They should be required to file public reports with the FCC containing aggregate statistics accurately reflecting the operation of their content moderation programs as well as general information about the algorithms they use for content moderation, prioritization and recommendation (while protecting their intellectual property rights). They should also be required to provide access to platform data for qualified independent researchers and regulators in a form and quantity to permit regular and ongoing audits of these platform operations to verify that they are operating as described and intended.
To promote competition to social media companies, the new law should authorize the FCC to explore policy tools such as data portability, interoperability and data sharing. To protect the competitive interests of their users, social media companies should be required to provide access to all qualified business users and to provide them with service on non-discriminatory terms and conditions.
A single agency such as the FCC with authority over social media companies in each of these policy areas would be able to adopt measures such as data portability that advance both privacy and competition, while also balancing the conflicts that inevitably arise such as when the need for transparency impinges on user privacy rights. The agency has the historical experience and can develop the expertise to do the job. It is time to extend their regulatory authority to include social media companies, the new digital media of the 21st century.
Mark MacCarthy is a senior fellow for the Institute for Technology Law and Policy at Georgetown University. He is the former vice president for public policy at the Software and Information Industry Association in Washington.