A better strategy to rein in Big Tech

The framers of our Constitution recognized that concentrated power is a threat to personal liberty, famously resulting in the separation of powers in the federal government. But they also knew that that threat was not limited to kings and queens.

Indeed, the American tradition has long been skeptical of private concentrations of power, whether the “hated trade monopolies” of the American Revolution or the industry-dominating trusts before Teddy Roosevelt came to office.

Today, our tech markets are controlled almost exclusively by a few companies. They influence almost every aspect of our lives. They tell us what’s true and what’s false. They decide what we see online, what we say, what we’re allowed to find and what apps we can download. Like the Eye of Sauron, they watch so much of what we do and curate our online experiences that increasingly determine what we do and think offline.

Worse yet, these companies have grown so powerful through a host of unique government privileges. From legal immunity to vast tax breaks, they can and do control markets (and too often narratives) with impunity and no accountability to the American public.

You don’t like it? Too bad. They run the show.

If we’re going to rein in Big Tech, make the market work for the people and not the powerful, we need a holistic strategy to combat their ever-enveloping influence.

Executive action is one possible solution — but it has limits. Despite Lina Khan’s trust-busting chops, the Federal Trade Commission has had little success stopping mergers or breaking up Big Tech in court. And now the courts are considering whether the Federal Trade Commission even has the constitutional authority to file suit.

That leaves Congress to rein in Big Tech. And fortunately, a bipartisan group of lawmakers has been looking at establishing guardrails.

Most prominently, Sens. Marsha Blackburn (R-Tenn.) and Richard Blumenthal (D-Conn.) introduced the Open App Markets Act to even the odds for consumers by promoting competition in app stores. Google and Apple (most famously) have leveraged their dominant position to stifle consumer choice of apps on their respective stores. Narrowly targeted and broadly bipartisan, the bill sailed through the Senate Judiciary Committee in February.

So why hasn’t Congress brought the Open App Markets Act to a vote? Political gamesmanship.

Rather than move forward on the Open App Markets Act, Senate leaders have tied its fate to the much broader American Innovation and Choice Online Act, which aims to address self-preferencing by internet giants. Although commendable for its intent, the devil is always in the details; and there are many, many details to be worked through in such a wide-ranging bill.

So, it’s no surprise that many senators who nominally support the bill have called for reworking it, leaving it – and consequently the Open App Markets Act – on indefinite hold.

We cannot let the great be the enemy of good. Congress is unlikely to pass the self-preferencing bill in its current form, and congressional leaders will need time, months perhaps, to fine-tune its terms to limit unintended consequences. At this point, Congress should green-light what’s ready to go – the Open Apps Market Act – and take the time that is needs to iron the wrinkles out of its self-preferencing bill.

Incremental progress is just sound policy.

Of course, even if Congress were to adopt both bills, we would still have a long way to go to unravel the Big Tech Gordian Knot. In particular, Big Tech would still exert significant control over our digital public squares.

For example, a study from North Carolina State University showed that Gmail often treats Republican emails as spam and Yahoo treats Democratic emails as spam, even for users who sign up to receive political emails. 

Meta CEO Mark Zuckerberg recently admitted that Facebook has censored posts at the government’s behest, including those by media outlets like the New York Post. And researchers have long been concerned about algorithmic bias against Black Americans and other people of color on social media.

What connects all these stories? A lack of transparency (or much belated transparency on Facebook’s part) about how Big Tech decides what we see and when we see it.

The good news is that Democrats and Republicans alike support increasing transparency for the tech sector. It’s time for Congress to flex that bipartisan muscle and bring these massive platforms out of the darkness and into the light.

Despite what you see on the news every day, bipartisanship survives in Washington, D.C., and a host of public servants are working to reduce the power of Big Tech, to protect our privacy and to safeguard our children online. 

But for this work to have an impact on the American public, the Senate needs to start by bringing these good, bipartisan bills to the floor for a vote.

Joel Thayer is president of the Digital Progress Institute and a Washington-based telecom and tech attorney.