If 2021 had a battle cry for U.S. lawmakers facing off with the world’s biggest tech companies, it would be this: “Legislation is coming.”
This year, lawmakers went beyond just grilling companies like Apple, Google, Facebook, Twitter and Microsoft, collectively known as Big Tech.
They tabled new legislation. New bills now before the U.S. Congress include measures aimed at addressing a broad range of concerns — from anti-competitive behaviour to the mental health impact of using social media and the spread of disinformation on online platforms.
“I think Big Tech today represents the biggest accumulation of power, market power and monopoly power that the world has ever seen,” Republican Sen. Ted Cruz of Texas said at a congressional hearing in April.
While it’s not a guarantee that the bills will pass in 2022, the stage has been set for a massive shift in the regulatory landscape for Big Tech.
In addition, U.S. President Joe Biden has made it clear that his administration will hold tech companies to account, with an executive order tasking federal agencies to enforce fair competition rules.
Antitrust bills introduced in Congress this year will be the subject of intense debate next year. Lawmakers are likely to focus on efforts to clamp down on the reach of Big Tech companies and reform the country’s fair competition laws.
“I think a lot did coalesce this year,” said Eleanor Fox, an antitrust professor at New York University. “There’s a real question about whether things will change next year, that is whether we’re getting closer and closer to really getting a grip on Big Tech and controlling their abuses in the United States.”
Legislators say those abuses include “killer acquisitions,” or the practice of buying up rivals in order to crush competition. Online platforms have also been criticized for favouring their own content or products when it’s hosted on their sites.
‘Antitrust laws are very weak’
“Our antitrust laws are very weak,” Fox said, noting that a key piece of the new legislation would shift the burden of proof from governments to Big Tech companies when it comes to justifying that their mergers don’t harm competition.
Legislators have been pointing to Facebook’s acquisition of Instagram and WhatsApp as an example of monopolistic behaviour.
Minnesota Democrat Sen. Amy Klobuchar has introduced a bill to increase the budgets of federal agencies tasked with the enforcement of fair competition rules.
“Our economy today faces a massive competition problem. We can no longer sweep this issue under the rug and hope our existing laws are adequate,” Klobuchar said in a statement in February.
Back-to-back moves by Biden this year also signalled his administration’s intent to crack down on Big Tech.
In June, Biden appointed Lina Khan, a well-known critic of Silicon Valley and a 32-year-old associate law professor at Columbia University in New York, as head of the Federal Trade Commission.
Shortly after, he signed an executive order that echoed many of the issues raised in the new bills before Congress around fair competition. He also made another prominent appointment, choosing Jonathan Kanter, another critic of Big Tech, to lead the antitrust division of the U.S. Department of Justice.
“Capitalism without competition isn’t capitalism. It’s exploitation,” Biden said in July.
While there has been bipartisan support for these measures, Democrats and Republicans are still at odds about how to create a competitive and fair landscape for consumers and businesses in the digital age.
Tech executives have also repeatedly defended their practices even as they’ve said they are open to rewriting some of the rules that govern their industry.
“There are a number of bipartisan bills right now. It’s possible that one or two of them will pass. It’s also possible that nothing happens,” said Fox. “U.S. Congress is very much in disarray. And it’s very hard to predict what will have legs.”
In 2021, legislators and advocates were finally armed with information and expertise around the practices of Big Tech, after years of hearings and investigations.
Congress won’t be the only arena where Big Tech will face battles. Major lawsuits have been filed against Facebook, Google and Amazon, some demanding that the companies be broken up.
‘Not very robust’
“We’ve got to control their power. And the law as it is right now is not very robust at controlling their power,” said Fox.
The other big lift for Congress in regulating Big Tech will be on content moderation and censorship. In March, tech executives from Facebook, Google and Twitter were grilled in Congress about the role their platforms may have played in fuelling the Jan. 6 Capitol insurrection in Washington, D.C.
“Do you bear some responsibility for what happened,” Democrat Rep. Mike Doyle of Pennsylvania pressed the executives during the hearing.
Each one dodged in giving a simple yes or no answer.
“Our responsibility is to make sure we effectively build systems,” said Facebook CEO Mark Zuckerberg. The CEOs said they take some responsibility for toxic content on their sites but insisted that neither their companies nor the government should be policing what people post.
Lawmakers on both sides disagree.
“The time for self-regulation is over,” said Democrat Rep. Frank Pallone of New Jersey.
In June, a Republican senator introduced a bill to enforce and modernize Section 230 of the Communications Decency Act.
Critics of Big Tech have called the law antiquated, allowing companies like Facebook and Twitter to wash their hands of the content on their sites.
“Big Tech has destroyed countless Americans’ reputations, openly interfered in our elections by banning news stories and baselessly censored important topics like the origins of the coronavirus,” Republican Sen. Marc Rubio of Florida said.
Republicans have been criticizing social media companies for censoring conservative viewpoints. Both parties have also been critical of the mental health impact on teens using social media platforms, particularly Instagram.
Several bills introduced in Congress cover a broad range of issues from how tech companies collect data to online safety for minors to whistle blower protection.
In October, Facebook employee-turned-whistleblower Frances Haugen testified in Congress.
“Facebook products harm children, stoke division and weaken democracy,” said Haugen, a data engineer and former product manager at the social media company.
She described a company that prioritized profit over public safety, with a CEO who is accountable to no one. Haugen provided a trove of leaked documents that she said back up her claims.
Zuckerberg defended his company’s business practices to his employees.
“I think most of us just don’t recognize the false picture of the company that is being painted,” he wrote in a Facebook post. “I’m proud of everything we do to keep building the best social products in the world.”
Whistleblower testified several times
Haugen has been called on by Congress several times since to testify on reforming Section 230, the rules that protect online platforms from being responsible for third-party content on their sites.
“I think what Frances Haugen did was heroic,” said Marc Berkman, CEO of the Organization for Social Media Safety, a California-based advocacy group working to keep kids safe online. “I think shedding a light on these dangers is going to keep families safe or safer.”
Amid growing public concern over the impact of social media use on children and teens, Instagram pulled a planned launch of a kids’ version of its platform.
Berkman said the work of his non-profit has intensified in recent years, both in trying to keep kids safe online and parents properly informed of what their children are exposed to on social media.
“I think legislation is an essential piece of the safety puzzle here. So if we don’t see legislation, more people are going to be harmed,” he said.
In Europe, lawmakers just approved a comprehensive legislation package called the Digital Markets Act and the Digital Services Act, seen by many as the toughest rule book to hit online platforms since their meteoric rise.
The new rules cover a broad range of issues from limiting tech’s marketing power to forcing them to better police content on their sites. The rule book could be adopted next year.
The EU is steps ahead of other countries including the U.S., where many of the proposed laws are still being debated.
“The whole world is understanding abuses by Big Tech and trying to control it in various ways,” said Fox.
“A huge problem is Big Tech is global, no question about it. And the laws that we’re talking about are national only. Big Tech has a big chance of playing the nations against each other.”